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31371998_1 

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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REPLY IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS 

PLAINTIFF’S AMENDED COMPLAINT 

I. INTRODUCTION 

Plaintiff Deborah Laufer ("Plaintiff" or “Laufer”) is a resident of Florida and never 

alleges in the Amended Complaint that she has ever visited either the state of Illinois or the hotel 

in question. Thus, there is no concrete current harm or risk of 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. Despite a 

lengthy Opposition, Plaintiff cannot overcome with any volume of words the fact that standing 

does not exist in this matter. Accordingly, the Court should grant the Motion to Dismiss filed by 

Defendant ESA Management, LLC, erroneously named as ESA P Portfolio LLC d/b/a Extended 

Stay America Rockford ("Defendant"). 

Defendant further encourages the Court to hold an evidentiary hearing on the issue of 

Plaintiff’s standing and whether she has a genuine intent to visit the hotel, or any of the nearly 

600 other locations sued recently. 

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II. DISCUSSION 

A. Courts Deciding The Same Issue With Laufer Have Held That Standing Does 

Not Exist 

A growing body of decisions involving virtually identical cases filed by Laufer show that 

standing does not exist. The closest match to the case at hand is Laufer v. BRE/ESA P Portfolio, 

LLC, Case 1:20-cv-01973-SAG (D. Md. 2020). In that case, Laufer sued the exact same hotel 

chain, Extended Stay America, oddly selecting a different subsidiary defendant. Thus, the case 

involved the same plaintiff and the same defendant entity, as well as the exact same issues and 

exact same fact pattern. Extended Stay America similarly filed a motion to dismiss based on lack 

of standing. Id. Doc # 5. Plaintiff then filed an opposition using language that often seems 

copied and pasted into this case. Thus, the two cases are nearly identical. 

On November 19, 2020, less than two weeks ago, the court in that matter issued its Order, 

granting the defendant’s motion to dismiss. Id. Doc #17. In doing so, the court stated that “[t]his 

Court agrees with the recent opinion expressed by United States District Judge Paula Xinis in 

Laufer v. Ft. Meade Hospitality, LLC, Civ. No. 20-1974-PX, 2020 WL 6585955, at *3 (Nov. 10, 

2020), that the Fourth Circuit’s opinion in Griffin is “decisive” on the issue of Laufer’s 

standing.” Id. Doc #17 at p. 4. The Court went on to state, “Laufer’s Complaint is defective 

because she too has failed to plead individual or particularized injury. Like Griffin, she 

asserts that the reservation websites do not comport with the ADA’s requirements, causing 

her informational injury because she is unable to assess the suitability of the facility and to 

reserve a room that adequately accommodates her disability.” Id. at p. 6 (emphasis added). 

Thus, that court, in deciding the exact same issue, involving the exact same fact pattern, and in 

essence the same parties, concluded that Plaintiff lacked standing to bring these claims. Put 

simply, there is no sufficient injury in fact for a person clicking buttons in Florida to bring claims 

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against hundreds of hotels thousands of miles away which she has not in the past and has no 

actual future intent to visit. 

 Indeed, the Court in ruling on the instant motion should heed the same caution expressed 

by the court in Laufer v. BRE/ESA P Portfolio, LLC. At the end of its opinion, that court 

reprimanded Plaintiff’s counsel for misleading the Court by proffering favorable case law while 

neglecting to mention unfavorable case law of which it was involved and thus clearly aware, by 

stating the following: 

Remarkably, Plaintiff filed a Notice of Supplemental Authority on 

November 13, 2020, describing a ruling issued earlier this month 

by a United States District Court in the Northern District of 

Illinois. ECF 16. That Court, applying Seventh Circuit law, found 

that Plaintiff had standing to sue a lodging establishment in 

Illinois. Id. This Court notes with disfavor counsel’s apparent 

practice of notifying this Court only of favorable rulings, while 

declining to notify this Court of the unfavorable ruling on the same 

issue by Judge Xinis, a federal judge in this district, on November 

10, 2020. Plaintiff is represented by the same attorney in this case 

and in Judge Xinis’s case, so there can be no question that counsel 

was aware of her ruling, which rested on Fourth Circuit precedent. 

Selectively updating the Court on beneficial case law from far 

afield jurisdictions, while failing to mention adverse 

developments in a near-identical case from this very district, 

borders on a violation of counsel’s duty of candor to the court. 

This Court warns counsel not to engage in such conduct in the 

future. 

Id. at p. 8 (emphasis added). 

Similarly, in Laufer v. Mann Hosp., LLC, No. A-20-CV-00620-JRN, 2020 BL 399102, 

2020 U.S. Dist. LEXIS 191630 (W.D. TX. Sep. 30, 2020), the court considered the very same 

issues as the case at hand, also involving a claim by Laufer. On September 30, 2020, the court 

found that Plaintiff lacked a genuine intent to visit the hotel in question and, therefore, lacked 

standing to bring the lawsuit. 

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Here, Plaintiff's residence is around 1060 miles from Defendant's 

business, Plaintiff does not claim to have ever visited Defendant's 

business before, Plaintiff has not provided any evidence 

suggesting future plans to visit, and Plaintiff has not provided 

any evidence suggesting she visits Caldwell, Texas frequently. 

The Deutsch court held that finding standing where the plaintiff 

"ha[d] a pattern of suing randomly selected business with which 

[he] had little or no prior relationship, and no plans of creating one 

in the future . . . would be to stretch the notion of standing past 

the breaking point." Deutsch, [2017 BL 70547], 2017 WL 

913813 , at *5 . 

Id. Doc # 15 at p. 8-9 (emphasis added). In considering defendant’s motion to dismiss, the court 

in Mann Hospitality, LLC ultimately concluded that Plaintiff was interested in little more than 

extraction of settlement funds from distant businesses, which was not sufficient to create 

standing for a federal lawsuit. 

The Court concludes that Plaintiff has failed to establish that she 

intends to patronize the Sunset Inn in Caldwell, Texas. Rather, it 

appears that her and her attorney’s sole intent in this litigation 

is to bully the Defendant into handing over as much money as 

possible, completely without a relationship with the business.

Therefore, the Court finds that Plaintiff has failed to demonstrate 

an “actual or imminent” injury that is not merely “conjectural or 

hypothetical,” or that she has “concrete plans” to patronize the 

business in the future. Plaintiff has no standing, and the case 

should be dismissed pursuant to Fed. R. Civ. P. 12(b)(1). 

Id. Doc # 15 at p. 9 (emphasis added). The court accordingly dismissed Laufer’s complaint for 

lack of standing. The Court here should rule in the same way. Furthermore, because the motion 

to dismiss in the Mann Hospitality, LLC case was filed on August 20, 2020, Plaintiff and 

Plaintiff’s counsel were aware of the problem with standing well before filing the nearly 

identical Amended Complaint in the instant action on October 8, 2020 (Doc #15). 

In Laufer v. Ft. Meade Hosp., LLC, No. 20-cv-1974-PX, 2020 BL 436926, 2020 U.S. 

Dist. LEXIS 210299 (D. Md. Nov. 10, 2020), the court again considered another nearly identical 

case brought by Laufer, as well as the issue of Laufer’s standing, this time sua sponte. In that 

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case, Laufer brought a motion for default judgement against the defendant. Earlier this month, 

the court issued an Order denying Laufer’s motion for default judgement and dismissing the 

Complaint for lack of standing. In doing so, the court stated: 

Accordingly, as in Griffin, Laufer has plead no facts which sets her 

claimed informational injuries apart from anyone who accesses the 

online reservation services. In this critical respect, Laufer has 

failed to plead an injury sufficiently concrete and 

particularized to confer standing. 

... 

But Laufer pleads nothing about her intent or ability to access 

these very hotel services in person. She does not present any facts 

to make plausible that she would or could stay at the hotel or even 

travel to Maryland. In fact, the Complaint makes plausible the 

opposite - that her role as a "tester" who routinely monitors online 

reservation websites for ADA compliance renders it more 

probable she will not stay at any of the scores of hotels she is 

searching on the internet.

Id. Doc #8 at p. 7 (emphasis added). The Court here should reach the same conclusion in order 

to achieve a just outcome. 

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, the court issued a 

sua sponte Memorandum-Decision and Order regarding Plaintiff’s lack of standing, stating 

“[t]here 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. Again, 

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this case was decided months before Plaintiff’s Complaint was filed in the instant action; thus, 

Plaintiff knew of her deficient standing before even filing the current lawsuit. 

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 “[t]here 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 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. Additionally, since the decision 

in the Northern District of New York issued in May of 2020, Plaintiff was put on notice about 

her deficient standing well before the filing of the instant lawsuit. 

Shockingly, Laufer has filed nearly 600 largely identical ADA lawsuits against 

hotels across the country, most in 2020. See Request for Judicial Notice, Exhibit 1. These 

cases were filed in multiple district courts in New York, Colorado, Connecticut, District of 

Columbia, Florida, Georgia, Illinois, Massachusetts, Maryland, Maine, New Jersey, 

Pennsylvania, Rhode Island, Texas, and Wisconsin at last count. This is simply not a just and 

fair use of the courts; indeed, the list of cases extends to 22 pages long at size 9 font. Moreover, 

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Laufer cannot reasonably have a genuine intention to visit each such hotel sued, particularly 

during the COVID-19 pandemic. 

It is the responsibility of the courts to ensure a just outcome, and, to do so, this Court 

should not allow Laufer to spam the system and enrich herself without appropriate standing. The 

spam style litigation tactic used by Laufer is particularly objectionable during the global 

COVID-19 pandemic in which many individuals and businesses are struggling to survive, 

particularly hotels. Thus, instead of allowing Laufer to extract money from hundreds of 

struggling businesses throughout the United States that she has no real, legitimate intention of 

visiting, Defendant requests that the Court grant its motion to dismiss for lack of standing. 

B. Courts Deciding The Same Issue With Other Plaintiffs Have Held Standing 

Does Not Exist 

In Hernandez v. Caesars License Co., Case NO. 19-cv-06090, 2019 BL 380939, (D.N.J. 

Oct. 04, 2019), the facts very closely mirror the fact in this case, ultimately resulting in the court 

dismissing the amended complaint. Just as in this case, the plaintiff in Hernandez v. Caesars 

License Co. was a Florida resident alleging website issues related to the defendant’s physical 

location in New Jersey. Defendant filed a motion to dismiss, which the plaintiff met with an 

amended complaint. The court then considered the motion to dismiss as applied to the amended 

complaint, and specifically considered the issue of standing. In its analysis, the court discussed 

tester standing, and stated that, “[a] motion to dismiss under Fed. R. Civ. P. 12(b)(1) must be 

granted if the court lacks subject-matter jurisdiction over a claim.” Id. at 2. Ultimately, the court 

found that plaintiff’s arguments regarding tester standing in the District of New Jersey were not 

convincing and granted the motion to dismiss, holding that, “[w]ithout an allegation that he was 

actually considering staying in Harrah's or that his experience accessing information on the 

Website was detrimentally different due to his disability, Plaintiff cannot demonstrate concrete 

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injury... For the foregoing reasons, Defendant's Motion to Dismiss (Doc. No. 10) is GRANTED 

and Plaintiff's Amended Complaint (Doc. No. 11) is DISMISSED.” Id. Doc # 19 at p. 5. 

The facts are nearly identical here, as both cases involved the same pattern of serial ADA 

filers residing in Florida spamming the courts with ADA lawsuits alleging claims against 

properties, located many states away, that they have never visited and have no specific intent to 

visit in the future. And, both cases involve the plaintiff attempting to establish tester standing 

with an amended complaint, despite lacking concrete plans to visit the property in question. 

Thus, the outcome in both cases should be the same — namely, that this matter is dismissed for a 

similar lack of standing. 

Many other courts have confirmed that a plaintiff’s non-specific assertion of a general 

desire to return to a defendant’s establishment for the sole purpose of confirming ADAcompliance, without more, is insufficient to establish standing. See, e.g., Harty v. Luihn Four, 

Inc., 747 F. Supp. 2d 547 (E.D.N.C. 2010) (holding that plaintiff lacked standing to sue for a 

visit to a store hundreds of miles from his home); see also Harty v. Greenwich Hospitality 

Group, LLC d/b/a Hampton Inn & Suites, 536 F. App'x 154 (2d Cir. 2013) (holding that a 

plaintiff who lives thousands of miles away from a location, who only visited it once and who 

had no specific plans to return lacked standing to file an ADA claim); see also Norkunas v. Park 

Road Shopping Center, Inc., 777 F.Supp.2d 998, 1005 (W.D.N.C. 2011) (“[T]he law makes 

clear that a Title III plaintiff cannot use her status as a tester to satisfy the standing 

requirements where she would not have standing otherwise. Thus, the naked assertion of a 

desire to return to a defendant establishment for the sole purpose of confirming ADAcompliance, without more, is insufficient to establish standing.”); see also Faircloth v. 

McDonald's Corp., No. 18 C 1831, 2018 U.S. Dist. LEXIS 193286, at *9 (N.D. Ill. Nov. 13, 

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2018) (“With no allegations of past injury or sufficiently specific allegations of future injury, 

Faircloth lacks standing to sue for violations of the ADA at the Raleigh McDonald's.”). 

Similarly, Payne v. Sears, Roebuck & Co., No. 5:11-CV-614-D, 2012 U.S. Dist. LEXIS 

75486 (E.D.N.C. May 31, 2012), closely resembles the case at hand. In Payne the plaintiff was 

also a Florida resident suing for ADA violations at a Sears store several states away in North 

Carolina, and in response, the defendant moved to dismiss based on the plaintiff’s lack of 

standing. The court applied a four factor test for standing under Title III of the ADA: 

Courts consider four factors to determine whether an 

individual ADA Title III plaintiff has demonstrated a "real and 

immediate threat of future harm" and thus satisfied the first 

requirement for Article III standing—an alleged injury in fact. 

These factors are: (1) the proximity of the plaintiff’s residence to 

the alleged offending establishment; (2) the plaintiffs past 

patronage of the establishment; (3) the definitiveness of the 

plaintiffs plan to return to the establishment; and (4) whether the 

plaintiff frequently travels nearby. 

Id. at p. 3. 

Thus, the four factors to consider in whether a Title III ADA plaintiff has standing

are as follows: 

(1) the proximity of the plaintiffs residence to the alleged offending establishment; 

(2) the plaintiffs past patronage of the establishment;

(3) the definitiveness of the plaintiffs plan to return to the establishment; and

(4) whether the plaintiff frequently travels nearby. 

The four factors considered by the court in the Payne matter were mixed. Nonetheless, 

the court ultimately found that “[i]n sum, the relevant factors indicate that Payne has not shown a 

‘real or immediate threat that [she] will be wronged again.’ Id., quoting Lyons, 461 U.S. at 111. 

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Here, Defendant submits to the Court that the four relevant factors are far more favorable 

to the defense than they were in the Payne case. The four factors of Title III ADA standing are 

applied to the present case below: 

(1) Proximity: Here, Plaintiff lives in Florida, even farther from the Illinois property at 

issue than in the Payne case. 

(2) Past patronage: Here, Plaintiff never alleged to have visited the property at issue in 

Illinois. 

(3) Plan to return: Here, Plaintiff never alleged in the Complaint an intent to return to or 

visit the hotel in Illinois, only making cursory allegations that Plaintiff intends to visit the 

state when the COVID crisis is over. This is a very distant, uncertain and abstract 

allegation relating to sometime in the future. 

(4) Frequency of travels nearby: Here, Plaintiff failed to plead that she has ever even 

visited Illinois, a very far cry from frequent travel to the area. 

Put simply, the four factors considered in the Payne case support dismissal of the present 

case even more strongly than in the Payne case, which resulted in dismissal. 

C. Dignitary Injuries Can Suffice For Standing, But Plaintiff Must Also Plead 

And Establish That She Suffered An Injury In Fact 

In her Opposition, Plaintiff points out that informational and dignitary injuries, such as 

the inability to obtain information on a website, can indeed suffice to support Article III 

standing. Opposition (Doc #19) at p. 3. Defendant acknowledges this point. However, Plaintiff 

here has not demonstrated a dignitary injury because Plaintiff has not demonstrated a genuine 

intent to obtain information about the hotel for the logical application of such information – 

visiting the hotel. If Plaintiff had a genuine intent to visit the hotel in question, not being able to 

obtain information about it online could indeed be a dignitary injury sufficient for standing, as 

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the court pointed out in Laufer v. U.L.S.T., LLC dba Waterfront Hotel & Marina, 1:20-cv-3527, 

DE 34 (N.D.Ill. November 4, 2020). However, this is not the case here, and the present matter is 

distinguishable from Waterfront Hotel on that basis. Plainly, Plaintiff has failed to plead a 

genuine intent to visit the hotel, and thus, there is no dignitary harm at issue. Considering 

Plaintiff’s prolific filings of nearly identical ADA cases across the country, Defendant fails to 

see any actionable dignitary harm suffered by Plaintiff in this matter. There is no injury in fact. 

D. The Requirements For Standing Do Not Derive From The ADA 

From page 5 to page 13 of Plaintiff’s Opposition, Plaintiff attacks a strawman argument. 

In short, Plaintiff argues that the text of the ADA does not explicitly require an intent to visit or 

return to the property, and since no such requirement is stated in the statute, the Court should not 

impose one. But Plaintiff misses the point that the requirement for an injury-in-fact 

element and connection to the property derives from the constitutional requirement for 

standing, not from the ADA. In 2017’s Nanni v. Aberdeen Marketplace, Inc., the Fourth 

Circuit explained that “[i]n order for Nanni [plaintiff] to pursue his ADA claim, he must satisfy 

"the irreducible constitutional minimum of standing" that is required in order to invoke 

jurisdiction in the federal courts. See Nanni v. Aberdeen Marketplace, Inc., 878 F.3d 447, 

454, (4th Cir. 2017), citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992). The court in 

Nanni then goes on to explain exactly why standing is required: 

In order to possess standing to sue in this proceeding, Nanni must 

satisfy the elements of standing enunciated by the Supreme 

Court in its Lujan decision. And only one of those elements — 

the "injury-in-fact" element — is being litigated here. To satisfy 

that specific element, the Complaint must show that Nanni 

"suffered an injury in fact — an invasion of a legally protected 

interest which is (a) concrete and particularized, and (b) actual or 

imminent, not conjectural or hypothetical." See Lujan, 504 U.S. at 

560 (footnote, citation, and internal quotation marks omitted). As 

further mandated by Lujan, because Nanni is seeking prospective 

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declaratory and injunctive relief rather than damages, the 

allegations in the Complaint of past injuries "do[] not in 

[themselves] show a present case or controversy . . . if 

unaccompanied by any continuing, present adverse effects." Id. 

at 564 (quoting City of Los Angeles v. Lyons, 461 U.S. 95 , 

102, 103 S. Ct. 1660 , 75 L. Ed. 2d 675 (1983)). 

Id. At 454 (emphasis added). 

Plaintiff’s Opposition uses nearly 10 pages to attack an argument that Defendant never 

advanced and that ignores basic principles of law. More specifically, Plaintiff ignores the basic 

constitutional requirements for standing in favor of a detailed description of how the text of the 

ADA does not explicitly require standing. But Plaintiff cannot escape the basic standing 

requirement of Lujan that an ADA plaintiff have more than “past injuries” without future adverse 

effects. Here, Plaintiff claims as a Florida resident that she will possibly one day visit a hotel in 

Illinois in an area which she has no connection or concrete reason to visit. These claims do not 

meet the clear constitutional requirements for standing outlined by the court in Lujan and applied 

by many other courts. See e.g., Perry v. Sheahan, 222 F.3d 309, 314 (7th Cir. 2000) (noting that 

Plaintiff lacked standing because he “alleged only past injury, but [could not] demonstrate a 

realistic threat that he would be the subject of another” redressible injury in the future); see also 

Scherr v. Marriott Int'l, 703 F.3d 1069, 1075 (7th Cir. 2013) (holding that plaintiff could not 

establish standing to pursue claims against defendant hotels absent her showing of a specific 

intent to visit the particular hotel in question). This is even more true in light of the more than 

500 nearly identical ADA lawsuits that Plaintiff has filed. The face of the Amended Complaint 

demonstrates that Plaintiff is not an individual with a genuine intent to visit the defendant’s 

property in Illinois. She is an individual with a desire to extract settlement sums from businesses 

that she will likely never visit. Court intervention is required. 

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III. CONCLUSION 

Plaintiff lacks standing in this case, and the Court accordingly lacks subject matter 

jurisdiction. For all the reasons above, Defendant respectfully requests that the Court dismiss 

Plaintiff’s Amended Complaint. 

 Dated: November 30, 2020 Respectfully submitted, 

ESA MANAGEMENT, LLC 

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 30th day of November, 2020, a true and 

accurate copy of the foregoing Reply 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 

31371998.1 

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