Deutsch v. Abijaoude, Sr.

Filing 29

REPORT AND RECOMMENDATIONS re 18 Motion to Dismiss filed by Malik Abijaoude, Sr.. The undersigned RECOMMENDS that the District Judge GRANT Defendant Malek Abijaoude, Sr.s First Amended Motion to Dismiss as to the issue of standing, and DISMISS all federal claims against the Defendants on that ground. Signed by Judge Andrew W. Austin. (dm)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
JON R. DEUTSCH

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VS.
MALEK ABIJAOUDE, SR.

A-15-CV-975 LY

REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
TO:

THE HONORABLE LEE YEAKEL
UNITED STATES DISTRICT JUDGE
Before the Court is the Defendant Malek Abijaoude, Sr.’s First Amended Motion to Dismiss

(Dkt. No. 18); Plaintiff’s Response to Defendant’s Second Motion to Dismiss (Dkt. No. 20); and
Supplement to Plaintiff’s Response to Defendant’s Second Motion to Dismiss (Dkt. No. 21). The
District Court referred the above-motion to the undersigned Magistrate Judge for a report and
recommendation pursuant to 28 U.S.C. §636(b) and Rule 1(c) of Appendix C of the Local Rules.
I. BACKGROUND
This suit is one of nearly 400 that the Plaintiff, Jon R. Deutsch, has brought against small
businesses in Austin, Texas. In each complaint, Deutsch alleges that he attempted to visit the
business but could not access it because he is disabled. Accordingly, he has brought suit under Title
III of the Americans with Disabilities Act, 42 U.S.C. §§12181, et seq. (“ADA”), and its attendant
regulations, the Americans with Disabilities Act Accessibility Guidelines, the Texas Accessibility
Standards, promulgated under the Texas Architectural Barriers Act Case, TEX. GOV’T. CODE §469,
and Chapter 121 of the Texas Human Resources Code, TEX. HUM. RES. CODE §121.001 et seq.
The Defendant in this case, Malek Abijaoude, Sr., is the owner of the Phoenicia Bakery,
located at 2912 South Lamar, Austin, Texas 78704, and the real property and improvements at that

location. Deutsch alleges that in “August of 2015” he patronized Phoenecia Bakery. Dkt. No. 1 at
9. He states that he “experienced difficulty and discomfort” during his visit, “encountering and
dealing with the lack of an accessible facility.” Id. He states that:
The Defendant’s Austin location does not have the required number of ADA parking
spaces. With 1-25 parking spaces, Defendant must have at least one ADA-Compliant
Van Accessible space (96” Wide with 96” Side Access Aisle). This space must be
located close to the entrance of the business. Additionally, the business has a
threshold that exceeds ½" and the access ramp is improperly sloped and dangerous.
Id. Deutsch has embedded photographs of the business’s parking lot in his complaint. Id. at 4-8.
He contends that these architectural barriers “denied the Plaintiff full and equal access to facilities,
privileges and accommodations offered by the Defendant.” Id. at 9. He alleges that “the failure to
remove the barrier was intentional” as it was “intuitive and obvious, . . . the Defendant exercised
control and dominion over the conditions at this location,” and “had the Defendant intended any
other configuration, it had the means and ability to make the change.” Id. Deutsch therefore seeks
an injunction compelling Abijaoude to re-stripe the parking lot in order to add the required numbers
of accessible parking spaces and modify the building by installing thresholds of less than ½" at the
entrance. Deutsch also seeks a declaratory judgment that Abijaoude is not in compliance with the
ADA. Finally, Deutsch seeks statutory damages of at least $300 per violation of TEX. HUM. RES.
CODE §121, his costs and attorney’s fees.
Abijaoude has brought a motion to dismiss in which he argues, inter alia, that Deutsch lacks
standing to bring his claim and that his claims are moot. Dkt. No. 18 at 5-13. Abijaoude not only
moves to dismiss Deutsch’s claims, but requests reasonable attorney’s fees and costs incurred
defending this suit. Dkt. No. 18 at 2.

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II. STANDING UNDER THE ADA
Federal courts are tribunals of limited subject matter jurisdiction and may only entertain a
case that fits within the judicial power of Article III of the Constitution and a statutory grant of
subject matter jurisdiction, such as federal question jurisdiction under 28 U.S.C. § 1331 and diversity
of citizenship jurisdiction under 28 U.S. C. § 1332(a)(1). 13D CHARLES ALAN WRIGHT, ARTHUR
R. MILLER. EDWARD H. COOPER, & RICHARD D. FREER, FEDERAL PRACTICE AND PROCEDURE § 3567
(3d ed. 2008). Subject matter jurisdiction includes the “irreducible constitutional minimum of
standing,” which has three elements:
First, the plaintiff[s] must have 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.’” Second, there must be a causal
connection between the injury and the conduct complained of—the injury has to be
“fairly . . . trace[able] to the challenged action of the defendant[s], and not . . . th[e]
result [of] the independent action of some third party not before the court.” Third, it
must be “likely,” as opposed to merely “speculative,” that the injury will be
“redressed by a favorable decision.”
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). The party invoking federal jurisdiction
bears the burden of proof for establishing these elements. Id. Where a plaintiff seeks declaratory
and injunctive relief, as in this case, the plaintiff must also show a significant possibility of future
harm; it is insufficient to demonstrate only past injury. See O'Shea v. Littleton, 414 U.S. 488, 495
(1974). Mere “‘someday intentions’—without any description of concrete plans, or indeed even any
specification of when the some day will be—do not support a finding of the ‘actual or imminent’
injury that our cases require.” Lujan, 504 U.S. at 564.
In the context of ADA claims, most courts evaluate whether future injury is probable by
determining whether the plaintiff is likely to return to the defendant’s business. E.g., Cortez v.
National Basketball Association, 960 F. Supp. 113, 117-18 (W.D. Tex. 1997) (finding that a plaintiff
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lacked standing because she failed to allege that she intended to return to the defendant’s events in
the future). Courts have frequently dismissed ADA cases where the plaintiff offered only vague
allegations and testimony about a future plan to visit a defendant’s property. See, e.g., Shotz v.
Cates, 256 F.3d 1077, 1082 (11th Cir. 2001) (holding that plaintiffs lacked standing because they
did not allege that they intended to return to a courthouse, and thus faced no “real and immediate
threat of future discrimination.”). When analyzing a plaintiff’s likelihood of return, courts usually
consider:
(1)
(2)
(3)
(4)

the proximity of the defendant’s business to the plaintiff’s residence,
the plaintiff’s past patronage of the defendant’s business,
the definiteness of the plaintiff’s plans to return, and
the plaintiff’s frequency of travel near the defendant.

D’lil v. Stardust Vacation Club, 2001 WL 1825832, at *3 (E.D. Cal. Dec. 21, 2001). Post-suit
efforts to bolster standing cannot help, because the court must judge standing based on the facts at
the time the suit is filed. See Access 4 All, Inc. v. Wintergreen Commercial P’ship, Ltd., 2005 WL
2989307 at *3 (N.D. Tex., Nov. 7, 2005). See also Moyer v. Walt Disney World Co., 146 F. Supp.
1249, 1253 (M.D. Fl. 2000) (plaintiff’s visit to business after complaint was filed did not confer
standing); Brother v. Tiger Partner, LLC, 331 F. Supp. 2d 1368, 1373 (M.D. Fla. 2004) (that
plaintiff made a reservation at defendant’s hotel after the complaint was filed was insufficient as
standing is determined as of the date the suit is filed).
Some courts have rejected the “intent to return” theory, and have instead relied on what has
been described as the “deterrent effect” doctrine to determine whether a Title III plaintiff has
established standing. Under this theory, a disabled individual suffers a cognizable injury if he is
deterred from visiting a noncompliant public accommodation because he has encountered barriers
related to his disability there. Chapman v. Pier 1 Imports, 631 F.3d 939, 950 (9th Cir.2011). “Just
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as a disabled individual who intends to return to a noncompliant facility suffers an imminent injury
from the facility’s existing or imminently threatened noncompliance with the ADA, a plaintiff who
is deterred from patronizing a store suffers the ongoing actual injury of lack of access to the store.”
Id. (internal quotation marks and citation omitted). “This theory is predicated on the ADA’s language
that a plaintiff need not ‘engage in a futile gesture if such person has actual notice that a person or
organization . . . does not intend to comply” with the ADA. Hunter v. Branch Banking and Trust
Co., 2013 WL 4052411 at *3 (N.D. Tex., Aug. 12, 2013) (quoting 42 U.S.C. § 12188(a)(1)).
In Betancourt v. Ingram Park Mall, L.P., 735 F.Supp.2d 587 (W.D. Tex. 2010), Judge
Rodriguez of the San Antonio Division of this court wrote at length on the two theories, contrasting
them and the rationales underlying each. In his view, the proper construction of the ADA requires
taking a “broader view” of the constitutional standing requirement in ADA Title III cases involving
architectural barriers.

Thus, he opined that standing would exist “so long as the alleged

discriminatory barriers remain in place, the plaintiff remains disabled, and the plaintiff is ‘able and
ready’ to visit the facility once it is made compliant,” adding “any disabled plaintiff who alleges that
she is being denied the opportunity to visit or is currently being deterred from visiting a public
accommodation that is violating Title III alleges sufficient present injury in fact for prospective
equitable relief.” Id. at 604. Importantly, even under this broader view, to have standing the plaintiff
“must at least prove knowledge of the barriers and that they would like to visit the building in the
imminent future but for those barriers.” Steger v. Franco, Inc., 228 F.3d 889, 892 (8th Cir.2000).
Thus, under either theory, a plaintiff must demonstrate an intent to visit the defendant’s business in
the future. Hunter, 2013 WL 4052411 at *3.

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Deutsch contends that the Fifth Circuit endorsed the broader of the two standing approaches
in Frame v. City of Arlington, 657 F.3d 215 (5th Cir. 2011), a Title II ADA case cited in his briefing.
Because an intent to return to, or visit, the defendant in the future is required under either theory,
whether that assessment of Frame is accurate is not crucial to the Court’s decision. It is, however,
instructive to examine the issue briefly. The questions presented in Frame were two: the applicability
of Title II to public sidewalks, and when the statute of limitations for a private citizen’s Title II suit
begins to run. Id. at 221. Thus, standing was far from the heart of the decision. The case does
include, however, this one-paragraph discussion on the topic:
The City contends that the plaintiffs lack standing with respect to inaccessible
sidewalks they have not personally encountered. To be sure, Article III standing
requires a plaintiff seeking injunctive relief to allege “actual or imminent” and not
merely “conjectural or hypothetical” injury. Mere “some day” intentions to use a
particular sidewalk, “without any description of concrete plans,” does not support
standing. But “imminence” is an “elastic concept” that is broad enough to
accommodate challenges to at least some sidewalks that a disabled person has not
personally encountered. For example, a plaintiff may seek injunctive relief with
respect to a soon-to-be-built sidewalk, as long as the plaintiff shows a sufficiently
high degree of likelihood that he will be denied the benefits of that sidewalk once it
is built. Similarly, a disabled individual need not engage in futile gestures before
seeking an injunction; the individual must show only that an inaccessible sidewalk
actually affects his activities in some concrete way. On remand, the district court
will be able to apply established standing doctrine to weed out any hypothetical
claims. At this point, however, the plaintiffs have alleged in detail how specific
inaccessible sidewalks negatively affect their day-to-day lives by forcing them to take
longer and more dangerous routes to their destinations. This is sufficient to support
their right to sue.
Frame, 657 F.3d at 235-36 (emphasis added; footnotes omitted). Because the Frame decision was
not focused on the standing requirements for a Title III ADA claim, it is difficult to conclude from
this single paragraph whether the Fifth Circuit would follow the “deterrent effect” line of cases, or
the “intent to return” theory if squarely faced with that question. Regardless, even reading the
language of Frame liberally, the court required that to have standing a plaintiff must set out facts
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sufficient to explain in some detail how the alleged deficiencies “negatively affect their day-to-day
lives,” and held that mere allegations of non-compliant facilities were insufficient. Thus, while
Frame stands for the principle that a disabled plaintiff need not traverse a rocky road to prove that
a missing sidewalk renders it inaccessible, he must nonetheless show that the inaccessible feature
“actually affects his activities in some concrete way.” Id. at 236.
III. ANALYSIS
A.

Standing

Abijaoude argues that Deutsch does not have standing to bring an ADA claim against him,
because he has failed to plead that he has attempted to enter the business while disabled or that he
will attempt to return and is thereby likely to suffer future harm. Abijaoude relies on a response to
a discovery request for this proposition. (Dkt. No. 18, Ex. D). In Interrogatory Number Three,
Abijaoude asks “Please state every date and time of day you have been on the property and entered
or attempted to enter Phoenecia Bakery in the last three years.” In response, Deutsch states: “Went
to the Phoenicia Bakery 3 years before my back surgery. I do not remember the exact date.” Id.
Abijaoude points out that Deutsch answers in another Interrogatory that he became wheelchair bound
after his July 2013 back surgery. Id. Thus, Abijaoude asserts, through his representations, Deutsch
has not attempted to enter his business since he became disabled. Deutsch responds that he provided
a copy of a “visit log” to Abijaoude which reads “Phoenecia Bakery, 2912 South Lamar, 7/28/2015”
in response to discovery requests and pled the date of his visit in his complaint. Deutsch argues that
these are sufficient to support his standing to bring an ADA claim against Abijaoude.
In fact the complaint reads “The Plaintiff patronized Phoenecia Bakery located at 2912 South
Lamar, Austin, TX 78704 in August of 2015.” The visit log indicates that Deutsch “visited” the

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property in July of 2015. Abijaoude further presents deposition testimony in which Deutsch testified
that he received the “visit log” from his attorney, who told him to go out and check on the businesses
on the list to see if those businesses were accessible. Dkt. No. 18, Ex. E. Deutsch testified that his
attorney had given him at least twenty-five or so of these lists in order to identify potential targets
for ADA accessibility suits. Id. Attorney Rosales also testified that he gave Deutsch lists of
businesses and Deutsch would go check the businesses to see whether or not they were ADA
compliant, and then check the businesses off on the log. Id. at Ex. E.
In other architectural barrier cases in which Deutsch has appeared as the plaintiff, this Court
found that Deutsch has a pattern of suing randomly selected businesses with which Deutsch has had
little or no prior relationship, and no plans of creating one in the future, and which have deficient
parking lots and/or thresholds. In many instances, the most interaction Deutsch has ever had with
a defendant was to look at the business’s parking lot from his car. In this case, despite his log of a
“visit,” on an undetermined date, and a one-time visit years before he was disabled, Deutsch has
failed to plead enough to establish standing. To hold that such a minimal relationship to a business
is sufficient to confer standing on Deutsch to sue that business would be to stretch the notion of
standing past the breaking point.
And while there is no doubt that a “tester” plaintiff can have standing under the ADA,
Betancourt, 735 F. Supp. 2d at 605, Deutsch is far from being a “tester.” He sued 385 business in
306 days (and those 306 days include all of the intervening Saturdays, Sundays and holidays when
the courthouse was closed). He did not provide the businesses pre-suit notice or allow them to cure
the deficient parking before suing, and his attorney demanded payment of thousands of dollars in

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attorney’s fees before he would dismiss the suits, even when the problems were quickly remedied.
See, e.g., Dkt. No. 6-1 in A-15-CV-1198 LY.
While the ADA does not require notice and an opportunity to cure before suit is filed, that
does not mean these facts have no relevance to the overall assessment of Deutsch’s intentions, which
are “front and center” in this analysis. As noted above, under either of the competing ADA standing
doctrines, an “intent to return” to the business is required. Reviewing all of the evidence before it,
the Court concludes that Deutsch has failed to establish any credible evidence that he had an
intention of ever patronizing the Phoenecia Bakery. Rather, it appears quite clear that Deutsch’s sole
intent in this campaign of litigation (an intent shared by his attorney) is to collect as much money
as possible from the defendants, completely without a relationship with the business. For these
reasons, Deutsch has failed to demonstrate he has suffered an “actual or imminent” injury that is not
merely “conjectural or hypothetical,” or that he has “concrete plans” to patronize the businesses in
the future. He therefore lacks standing to pursue these suits, and they should be dismissed pursuant
to FED. R. CIV. P. 12(b)(1).
B.

Attorney’s Fees

Abijaoude requests that he be granted reasonable attorneys’ fees under the provisions of 42
U.S.C. § 12205 and costs pursuant to 28 U.S.C. § 1919. Section 12205 grants a court discretion to
award reasonable attorneys’ fees to the prevailing party in an action brought under the ADA. 42
U.S.C. § 12205. Here, the Court has not reached the merits of Deutsch’s ADA claim, but instead
has determined that Deutsch lacks standing to bring such a claim. Attorneys fees under 42 U.S.C.
§ 12205 are therefore not appropriate in this case.

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28 U.S.C. § 1919 states that “[w]henever any action or suit is dismissed in any district court,
the Court of International Trade, or the Court of Federal Claims for want of jurisdiction, such court
may order the payment of just costs.” 28 U.S.C. § 1919 (emphasis added). See also Callicrate v.
Farmland Indus., Inc., 139 F.3d 1336, 1340 n. 8 (10th Cir. 1998) (citing a distinction between the
entitlement to an award of costs under Fed. R. Civ. P. 54(d)(1) and an award of just costs under 28
U.S.C. § 1919). Section 1919 is permissive, allows the district court to award “just costs,” and does
not turn on which party is the “prevailing party. ” Miles v. State of California, 320 F.3d 986 (9th Cir.
2003). The general costs statute—28 U.S.C. § 1920—similarly provides a court with discretion in
awarding costs when it enters judgment, and FED. R. CIV. P. 54(d) “contains a strong presumption
that the prevailing party will be awarded costs.” Pacheco v. Mineta, 448 F. 3d 783, 793 (5th Cir.
2006). Accordingly, it is appropriate that Abijaoude be awarded his costs.
IV. RECOMMENDATION
The undersigned RECOMMENDS that the District Judge GRANT Defendant Malek
Abijaoude, Sr.’s First Amended Motion to Dismiss (Dkt. No. 18) as to the issue of standing, and
DISMISS all federal claims against the Defendants on that ground. The Court FURTHER
RECOMMENDS that, pursuant to 28 U.S.C. § 1367(c)(3), the District Judge decline to exercise
supplemental jurisdiction over the state law claims and DISMISS WITHOUT PREJUDICE all
such claims. FINALLY, IT IS RECOMMENDED that Abijaoude’s request for attorney’s fees be
DENIED, but that the Court award Abijaiude his costs pursuant to Rule 54. The Clerk is directed
to remove this case from the docket of the undersigned and return it to the docket of the Honorable
Lee Yeakel.

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V. WARNINGS
The parties may file objections to this Report and Recommendation. A party filing objections
must specifically identify those findings or recommendations to which objections are being made.
The District Court need not consider frivolous, conclusive, or general objections. See Battle v.
United States Parole Comm’n, 834 F.2d 419, 421 (5th Cir. 1987).
A party's failure to file written objections to the proposed findings and recommendations
contained in this Report within fourteen (14) days after the party is served with a copy of the Report
shall bar that party from de novo review by the District Court of the proposed findings and
recommendations in the Report and, except upon grounds of plain error, shall bar the party from
appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the
District Court. See 28 U.S.C. § 636(b)(1)(c); Thomas v. Arn, 474 U.S. 140, 150-53, 106 S. Ct. 466,
472-74 (1985); Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en
banc).
SIGNED this 7th day of March, 2017.

_____________________________________
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE

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