Deutsch v. Annis Enterprises, Inc., 020818 FED5, 17-50231
|Court:||United States Courts of Appeals, Court of Appeals for the Fifth Circuit|
|Judge Panel:||Before REAVLEY, SMITH, and OWEN, Circuit Judges.|
|Opinion Judge:||PER CURIAM.|
|Party Name:||JON R. DEUTSCH, Plaintiff-Appellant, v. ANNIS ENTERPRISES, INCORPORATED, Defendant-Appellee.|
|Case Date:||February 08, 2018|
Appeal from the United States District Court for the Western District of Texas
Before REAVLEY, SMITH, and OWEN, Circuit Judges.
This is a companion case to Deutsch v. Travis County Shoe Hospital, Inc., No. 16-51431, 2018 U.S. App. LEXIS 2647 (5th Cir. Feb. 2, 2018) (per curiam) (unpublished). Here, as there, Jon Deutsch appeals the dismissal, for want of Article III standing, of his claims under the Americans with Disabilities Act ("ADA"). And here, as there, Deutsch appeals (1) the contempt order of the magistrate judge ("MJ") that fined his counsel $2, 500 and (2) the district court's alleged attorney's fee award to Annis Enterprises, Incorporated ("Annis"). For essentially the same reasons as in the companion case, we affirm.
Deutsch is paraplegic and relies on a wheelchair for mobility. He claims to have patronized Color at Dawn, a woman's hair salon located on Annis's property. Deutsch avers that he "experienced difficulty and discomfort" during his visit because Annis's parking lot does not have the number of parking spaces required by the ADA and lacks access ramps, and because the threshold to Color at Dawn exceeds one-half inch. Deutsch sued Annis, seeking injunctive and declaratory relief, statutory damages under Texas law, and attorney's fees from Annis.
This suit is but one of 385 ADA lawsuits that Deutsch filed in 306 days- including all days when the courts are closed. Deutsch's complaint did not indicate whether he would ever visit Color at Dawn again. Instead, the complaint contained statements such as that "Mr. Deutsch will continue to experience unlawful discrimination as a result of Defendant's refusal to comply with the ADA."
Annis moved to dismiss under Federal Rules of Civil Procedure 12(b)(1) and (6). Because Deutsch's complaint was rather bare as to standing, the MJ convened an evidentiary hearing on that issue. And because six other defendants-including Travis County Shoe Hospital-filed similar motions to dismiss for lack of standing, the MJ ordered a consolidated hearing for all seven cases. The order that set the hearing, common to all cases, conspicuously stated, "IT IS FURTHER ORDERED that Plaintiff Jon R. Deutsch be present at the hearing, and be prepared to provide sworn testimony on the standing issues raised in the motions."
Yet Deutsch did not appear. His attorney, Omar Rosales, explained that he had not instructed Deutsch to be present because they had "settled those cases where the standing was raised-three of the cases yesterday. So pursuant to the Court orders, my client is out of town." Rosales also contended that the electronic filing notifications, or PACER entries, mandated Deutsch's presence only for those three cases. The MJ declared a recess and told Rosales that he would set a hearing for Rosales to show cause why he was not in contempt. The defendants who had not settled reiterated that each of them had filed a motion to dismiss for lack of standing.
The MJ issued an order to show cause why Rosales should not be held in contempt for failing to follow the order to have Deutsch present. The order noted that "[b]ecause of Mr. Deutsch's absence, the Court was forced to recess the hearing, to the great inconvenience of counsel for the defendants, and their clients." The MJ also held a "summary contempt hearing, " insofar as the MJ reasoned that Rosales had failed to comply with the order "in the presence of the Court." At that hearing, Rosales was given the opportunity to respond. He claimed that he "never missed a court date in five years, " and "[i]n haste, [he] didn't read the order . . . . [He] just looked at the Pacer entry." The MJ found Rosales in contempt and gave him the chance to allocate as to punishment. Rosales reiterated that this was his first offense. After considering "all the circumstances, " including the number of cases involved, the MJ issued a fine of $2, 500.
The evidentiary hearing was then reconvened, with Deutsch present. Each of the four defendants questioned Deutsch. As relevant to Annis's case, Deutsch explained that he visited Color at Dawn to get hair coloring for his wife but made no attempt to get out of his vehicle because it was obvious that he would not be able to enter. Deutsch admitted he has not been back to Color at Dawn since that incident. Furthermore, another attorney's questioning revealed that Deutsch works with Rosales on a list of properties to visit-and an examination of that list led the MJ to conclude that Rosales had prepared most of it. Finally, questioning revealed that Deutsch could not identify a single business that he had sued and then returned to after settlement.
The MJ recommended dismissing for lack of standing under Rule 12(b)(1). He reasoned that "Deutsch has failed to demonstrate that 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 . . . ." The district court adopted the ...
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