    Case: 17-50231   Document: 00514343012    Page: 1   Date Filed: 02/09/2018




                     REVISED February 9, 2018

         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT


                               No. 17-50231
                                                                United States Court of Appeals
                                                                         Fifth Circuit

                                                                       FILED
                                                                February 8, 2018
                                                                  Lyle W. Cayce
                                                                       Clerk
JON R. DEUTSCH,

                                         Plaintiff–Appellant,

versus

ANNIS ENTERPRISES, INCORPORATED,

                                         Defendant–Appellee.




                Appeal from the United States District Court
                     for the Western District of Texas




Before REAVLEY, SMITH, and OWEN, Circuit Judges.
PER CURIAM:

     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(unpublished).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
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                                No. 17-50231
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.

                                      I.
      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 injunc-
tive 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 com-
plaint contained statements such as that “Mr. Deutsch will continue to experi-
ence 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
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                                 No. 17-50231
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 pursu-
ant to the Court orders, my client is out of town.” Rosales also contended that
the electronic filing notifications, or PACER entries, mandated Deutsch’s pres-
ence 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 allocute 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

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                                       No. 17-50231
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 hypo-
thetical,’ or that he has ‘concrete plans’ to patronize the businesses in the
future. He therefore lacks standing . . . .” The district court adopted the MJ’s
report and recommendations and overruled Rosales’s objection to the order of
contempt. Deutsch appealed.

                                              II.
       Regarding standing, “[w]e review a district court’s dismissal for lack of
subject matter jurisdiction de novo.” 1 If the district court resolved any disputed
facts, then the appellate court reviews those determinations for clear error.
Williamson, 645 F.2d at 413. For the same reasons articulated in Travis
County Shoe Hospital, Deutsch has not established Article III standing
because he has not shown that any alleged ADA violation by Annis threatens



       1 Freeman v. United States, 556 F.3d 326, 334 (5th Cir. 2009) (quoting Stiles v. GTE
Sw., Inc., 128 F.3d 904, 906 (5th Cir. 1997)). Deutsch wrongly asserts that the MJ was barred
from holding an evidentiary hearing and was limited to the complaint. But because Annis
raised a Rule 12(b)(1) motion, the district court is permitted to dismiss based on “(1) the com-
plaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or
(3) the complaint supplemented by undisputed facts plus the court’s resolution of disputed
facts.” Freeman, 556 F.3d at 334 (quoting Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir.
May 1981)). Accordingly, the district court “may hear conflicting written and oral evidence
and decide for itself the factual issues which determine jurisdiction.” Williamson, 645 F.2d
at 413.
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                                     No. 17-50231
him with future injury.

      Federal courts have subject matter jurisdiction only over a “case” or “con-
troversy.” See U.S. CONST. ART. III, § 2, cl. 1. To establish a “case or contro-
versy,” a plaintiff must show that he has standing to sue. Lujan v. Defs. of
Wildlife, 504 U.S. 555, 560–61 (1992). Accordingly, Deutsch must establish
that (1) he has 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,” (2) there is a “causal connection between the
injury and the conduct complained of,” and (3) it is “likely . . . that the injury
will be redressed by a favorable decision.” Id. (internal quotations and cita-
tions omitted). “The party invoking federal jurisdiction bears the burden of
establishing these elements.” Id. at 561.

      Furthermore, if the plaintiff seeks equitable relief, he must also show
that “there is a real and immediate threat of repeated injury.” City of Los
Angeles v. Lyons, 461 U.S. 95, 102 (1983). Merely having suffered an injury in
the past is not enough; the plaintiff must show a “real or immediate threat that
the plaintiff will be wronged again.” Id. at 111. Because Deutsch sues under
the ADA, he is limited to seeking “injunctive relief, and a restraining or other
similar order.” Plumley v. Landmark Chevrolet, Inc., 122 F.3d 308, 312 (5th
Cir. 1997) (citing 42 U.S.C. § 12188). Accordingly, he must meet the standing
requirements for equitable relief.

      We applied the future-injury requirement to the ADA in Frame v. City of
Arlington, 657 F.3d 215, 235–36 (5th Cir. 2011) (en banc). 2 There, we held that
plaintiffs need not actually use an ADA-noncompliant sidewalk to have
standing—instead, they must show only that “an inaccessible sidewalk


      2As the Travis Cty. Shoe Hosp. panel noted, Frame was not decided under Title III of
the ADA. For the purposes of this opinion, we assume the analysis is the same.
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                                       No. 17-50231
actually affects [their] activities in some concrete way.” Id. If the plaintiffs
could show that the ADA violation actually would affect them in a concrete
way, they would have shown an “actual or imminent injury.” Id. at 235. Thus,
the plaintiffs had established standing because they had “alleged in detail how
specific inaccessible sidewalks negatively affect their day-to-day lives by forc-
ing them to take longer and more dangerous routes to their destinations.” Id.
at 236.

       Deutsch insists that, under Frame, he has satisfied the future-injury
standing requirement to seek equitable relief. Far from it. Much unlike the
Frame plaintiffs, Deutsch has not shown how the supposed ADA violations at
Color at Dawn will “negatively affect [his] day-to-day li[fe].” Id. All the record
shows is that he visited there once. As the district court found, there is no
evidence that Deutsch has any intent to return—nor is there any reason to
believe that Deutsch is affected by Annis’s alleged ADA violation in any way,
let alone “some concrete way.” See id. Instead, Deutsch has filed nearly 400
lawsuits in just over 300 days and could not remember a single establishment
that he sued and then returned to. Thus, he has not shown any likelihood of
future injury necessary to obtain equitable relief.

                                             III.
       Deutsch contends that the district court wrongly overruled his objection
to the MJ’s contempt order. Unlike in Travis County Shoe Hospital, the district
court expressly considered Deutsch’s objections to the contempt order and over-
ruled them. Thus, we have jurisdiction to hear Deutsch’s appeal. 3

       3 “The prevailing view is that a magistrate lacks the power to adjudicate contempt
proceedings; pursuant to 28 U.S.C. § 636(e), a magistrate may only certify to the district court
(or deny certification thereof) facts possibly constituting contempt.” Castaneda v. Falcon,
166 F.3d 799, 801 (5th Cir. 1999). Here, the MJ expressly ordered contempt based on
§ 636(e). Therefore, “we are without jurisdiction unless and until the district court acts and
a proper notice of appeal is filed from whatever action the district court might take.” Id. As
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                                       No. 17-50231
       We review the imposition of sanctions for abuse of discretion. See Crowe
v. Smith, 151 F.3d 217, 226 (5th Cir. 1998). 4 “A court abuses its discretion
when its ruling is based on an erroneous view of the law or on a clearly erron-
eous assessment of the evidence.” 5

       Deutsch gives three reasons why the contempt order was erroneous:
(1) Rosales lacked bad faith; (2) Rosales was not given due process; and (3) the
fine was not the least restrictive possible. Each contention is without merit.

       First, assuming that bad faith is required for an obstruction-of-justice
sanction under § 636(e)(2), 6 the district court did not abuse its discretion.
Rosales’s excuse for not complying with the MJ’s order was that he looked only
at the Pacer entries, rather than the order itself (which plainly required
Deutsch to be present for all seven cases). It is wholly reasonable not to credit


stated, the district court explicitly considered and rejected Deutsch’s objection to the
contempt order. Deutsch now raises that same objection on appeal. Although the more
proper procedure would have been an appeal by Deutsch to the district court in lieu of filing
objections, we assume that the district court’s action is sufficient for our review. Cf. Trufant
v. Autocon, Inc., 729 F.2d 308, 309 (5th Cir. 1984) (per curiam). And we assume that the
district court’s review and overruling of Deutsch’s detailed objection is sufficient to satisfy
any Article III concerns with the contempt authority of MJs. See Castaneda, 166 F.3d at 801
& n.4 (collecting cases).
       4 See also In re Contempt Order, 441 F.3d 1266, 1267–68 (10th Cir. 2006) (noting that
where an MJ issues summary criminal contempt sanctions under § 636 and in accordance
with Federal Rule of Criminal Procedure 42, the analysis is the same as for a sanction issued
by a district court under its inherent Article III powers).
       5In re First City Bancorp. of Tex. Inc., 282 F.3d 864, 867 (5th Cir. 2002) (per curiam)
(quoting Chaves v. M/V Medina Star, 47 F.3d 153, 156 (5th Cir. 1995)).
       6We base this assumption on two reasons. First, other “obstruction of justice” contexts
require something akin to bad faith. See, e.g., United States v. Iverson, 874 F.3d 855, 858
(5th Cir. 2017) (noting that willful obstruction is required for an obstruction-of-justice sen-
tence enhancement); United States v. Fisch, 851 F.3d 402, 407 (5th Cir.), cert. denied,
138 S. Ct. 378 (2017) (requiring acting corruptly with the specific intent to hinder judicial
proceedings for a criminal statute regarding obstruction of justice). Second, as stated above,
we assume that MJ-issued contempts under § 636(e)(2) should be treated the same as district
court contempts under their inherent Article III powers. Cf. In re Contempt Order, 441 F.3d
at 1267–68. And criminal contempt normally requires bad faith. See, e.g., Crowe, 151 F.3d
at 236.
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that excuse. We have found “entirely appropriate the court’s expectation of a
heightened standard of conduct by a litigant who is also an attorney.” 7 Accord-
ingly, the bad-faith finding may be “predicated on a single point: [Rosales]
knew better.” 8

       The order was plain and manifestly unambiguous: Deutsch was to be
present for the hearing on seven cases, each of which involved standing issues.
Rosales must have known that standing was still at issue, given that the
remaining defendants—including Annis—had filed motions to dismiss for lack
of standing. Any lawyer would have been aware of the motions filed in those
cases and would know to look at the actual order. See Carroll, 110 F.3d at 294.
Accordingly, it is at least reasonable to conclude that Rosales acted in bad faith;
thus, the district court did not abuse its discretion in finding that Rosales
obstructed justice.

      Second, Rosales received all the process to which he was due.                   The
requirements of due process “balance the competing concerns of necessity and
potential arbitrariness by allowing a relatively unencumbered contempt power
when its exercise is most essential, and requiring progressively greater proce-
dural protections when other considerations come into play.” See Int’l Union,
United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 832 (1994). Thus,
summary adjudication is permitted for “petty, direct contempts in the presence
of the court.” Id. Similarly, other direct contempts may be resolved only by
“notice and a hearing.” Id. at 832–33.

      Rosales’s failure to bring Deutsch to court took place in the presence of


       7Carroll v. Jaques Adm. Law Firm, P.C., 110 F.3d 290, 294 (5th Cir. 1997) (quoting
Coane v. Ferrara Pan Candy Co., 898 F.2d 1030, 1033 (5th Cir. 1990)).
       8Id.; see also United States v. Onu, 730 F.2d 253, 255–58 (5th Cir. 1984) (upholding
contempt where the lawyer had no good excuse for missing a pretrial conference because he
was attending a legislative session and had not been fully paid by the client).
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the judge. Accordingly, Rosales was at most entitled to notice and a hearing.
See Carroll, 110 F.3d at 293. 9 That he received. When he told the MJ that he
had not brought Deutsch to the first hearing—or even instructed Deutsch to
be present—the MJ warned Rosales that he would set a show cause hearing.
The MJ then issued a written order to show cause, describing the conduct
under review. There was a hearing at which Rosales was given the chance to
explain himself and allocute about the sanction itself. And Rosales filed a
written objection with the district court, which denied his objection. Accord-
ingly, Rosales received due process.

       Finally, Rosales is correct that courts are generally required to impose
the “least onerous sanction which will address the offensive conduct.” Gonzalez
v. Trinity Marine Grp., Inc., 117 F.3d 894, 899 (5th Cir. 1997). But in Carroll,
110 F.3d at 294, we upheld a $7,000 sanction where the attorney was “challeng-
ing and insulting plaintiff’s counsel, refusing to answer questions, [and] curs-
ing” during his deposition. We reasoned that the attorney’s actions “necessi-
tated additional court hearings and written interrogatories and thus burdened
the court as well as his opponent”; moreover, as an attorney, the defendant was
“presumed to have understood the impact of his contumacious approach.” Id.

       The same is true here. Although this was Rosales’s first offense, he is
presumed to have understood that his actions would delay the proceedings at
a burden to his many opponents and the court. The sanction, as less than that
in Carroll, reflects that Rosales’s conduct was less severe than that in Carroll.
Accordingly, district court did not abuse its discretion in the amount of the
sanction.


       9 See also Am. Airlines, Inc. v. Allied Pilots Ass’n, 968 F.2d 523, 527, 530 (5th Cir.
1992) (imposing such requirements for a Rule 11 violation of signing misleading pleadings);
Onu, 730 F.2d at 257 (permitting a notice and a hearing to suffice for a lawyer’s failure to
appear).
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                                     IV.
     Deutsch finally insists that the district court wrongfully awarded attor-
ney’s fees. The district court did no such thing. It awarded Annis—and Travis
County Shoe Hospital—only their costs of court.

     AFFIRMED.




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