# MULLEN v. ASHIRWAD HOSPITALITY, LLC

> District Court, W.D. Pennsylvania · March 5, 2024

URL: https://www.frixlaw.com/law-library/cases/10419479

## Case

- **Court:** District Court, W.D. Pennsylvania
- **Decided:** March 5, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10419479

## How later opinions describe it (automated extraction)

- stating that dismissals for lack of standing should generally be without prejudice subject to the condition that “a dismissal with prejudice is . . . appropriate . . . where it [is] plainly unlikely that the plaintiff [will be] able to cure the standing problem.”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
BARTLEY MULLEN, )
)
Plaintiff, ) 2:23-cv-01277
)
v. )
)
ASHIRWARD HOSPITALITY, LLC, )
)
Defendant. )

OPINION
Mark R. Hornak, Chief United States District Judge
Plaintiff Bartley Mullen brought this suit under the Americans with Disabilities Act
(ADA), claiming that Defendant’s hotel in Ligonier, Pennsylvania, violates the ADA by not having
accessible beds for double amputees using a specific type of wheelchair, including him. Defendant
moved to dismiss for lack of standing. For the reasons set forth herein, Defendant’s Motion to
Dismiss (ECF No. 20) is GRANTED without prejudice.
I. Background
Plaintiff Bartley Mullen is a double above-knee amputee. (ECF No. 18 ¶ 1). Defendant
operates a hotel in Ligonier, PA. Mullen, per his Amended Complaint, wants to visit the hotel, but
the “the mattress surface of the beds in the ‘accessible’ rooms in Defendant’s hotel are 30 inches
from the ground, thereby rendering it difficult if not impossible for Plaintiff to patronize
Defendant’s hotel, because he would not be able to transfer [himself] from his standard size 18-
inch high wheelchair to the surface of Defendant’s 30-inch beds.” (Id. ¶ 3).
Mullen has never visited Defendant’s hotel, but Mullen “regularly” travels throughout
western Pennsylvania and generally desires to, in the future, visit the attractions in the Laurel
Highlands, the area in which Ligonier is located. (Id. ¶ 17). He reports that he desires to patronize
Defendant’s hotel, specifically, so that he has a place to stay when he visits Ligonier, Pennsylvania.
(Id.).

Because Mullen says that he cannot stay in Defendant’s hotel due to the mattress level, he
brought this suit,1 alleging that Defendant violated the ADA, 42 U.S.C. §§ 12181, et seq. Mullen
seeks declaratory judgment and injunctive relief, as well as costs of suit and attorney’s fees. (Id.
at 10). Defendant filed a Motion to Dismiss for lack of standing, arguing that, regardless of which
theory of standing the Court utilizes to conduct its analysis, Mullen’s Amended Complaint shows
that the Court lacks subject matter jurisdiction because Mullen lacks standing to assert his claims
in federal court. (ECF No. 20).

As part of its Motion to Dismiss, Defendant argued that the Court should at that time stay
the case pending the Supreme Court’s decision in Acheson Hotels v. Laufer, 601 U.S. 1 (2023),
which involved a similar, but not identical, standing issue in the ADA context. That decision came
down in December 2023 during the pendency of the instant Motion to Dismiss. In Acheson, the
Supreme Court vacated the lower court’s decision and remanded the case for dismissal on
mootness grounds. Id. at 5. Justice Thomas filed a concurring opinion (as did Justice Jackson, but
her concurrence was focused on vacatur and is not relevant for these purposes) which reached the

standing question presented to the Court here. Justice Thomas concluded that Laufer, the plaintiff
below in that case, lacked standing to bring her ADA claims. Id. at 10 (Thomas, J., concurring).

1 Mullen made identical allegations about a Pittsburgh hotel in another case. Mullen v. Concord Hosp. Enters. Co.,
LLC, No. 20-cv-01530, 2022 WL 295880 (W.D. Pa. Feb. 1, 2022). The complaint in that case survived a motion to
dismiss, but it does not appear that standing was ever at issue or raised by the court. Instead, the defendant in that
case relied on ADA regulations and its supposed compliance with said regulations in urging the court to dismiss
Mullen’s complaint.
Key to Justice Thomas’s conclusion was that Laufer did not have an intent to visit the defendant
hotel involved in that case. Id. at 13.

Both parties here filed responses to the Acheson decision. Defendant contends that the
Court should adopt Justice Thomas’s view of ADA standing and dismiss Mullen’s Amended
Complaint. (ECF Nos. 23, 26). Mullen, on the other hand, says that Justice Thomas’s concurrence
is inapplicable because, unlike Mullen, the plaintiff in Acheson had no desire to visit the defendant
hotel. (ECF No. 24).
II. Legal Standard

Federal Rule of Civil Procedure 12(b)(1) provides that a defendant may move to dismiss a
plaintiff’s complaint for lack of subject matter jurisdiction. Under Rule 12(b)(1), the Court “must
accept as true all material allegations set forth in the complaint and must construe those facts in
favor of the complaining party.” Storino v. Borough of Point Pleasant Beach, 322 F.3d 293, 296
(3d Cir. 2003) (citing Warth v. Seldin, 422 U.S. 490, 501 (1975)). “[W]hen standing is challenged
on the basis of the pleadings, we ‘accept as true all material allegations in the complaint, and . . .

construe the complaint in favor of the complaining party.’” Pennell v. City of San Jose, 485 U.S.
1, 7 (1988) (quoting Warth, 422 U.S. at 501); see also Baldwin v. Univ. of Pittsburgh Med. Ctr.,
636 F.3d 69, 73–74 (3d Cir. 2011).
III. Discussion

“Article III of the Constitution limits [the] federal ‘judicial Power’ to the adjudication of
cases or controversies.” Toll Bros. v. Twp. of Readington, 555 F.3d 131, 137 (3d Cir. 2009) (citing
U.S. Const. art. III, § 2). “No principle is more fundamental to the judiciary's proper role in our
system of government than the constitutional limitation of federal-court jurisdiction to actual cases
or controversies.” Simon v. E. Ky. Welfare Rts. Org., 426 U.S. 26, 37 (1976). One aspect of the
case or controversy requirement is standing; a litigant must show that they are the proper party to
bring the underlying suit, and a litigant can make that showing by (1) alleging an actual or
imminent injury particularized to them that (2) is fairly traceable to the defendant’s conduct and

that (3) is likely to be redressed by the relief sought. Massachusetts v. E.P.A., 549 U.S. 497, 517
(2007); Mielo v. Steak ‘n Shake Operations, Inc., 897 F.3d 467, 478 (3d Cir. 2018).
Working backwards, both traceability and redressability are satisfied here. Defendant does
not argue that either of these elements is not satisfied, as the beds in the hotel owned by Defendant
are the undisputed cause of Mullen’s purported injury, and an injunction requiring beds lower to
the ground so that Mullen could better access them would likely remedy that injury.

Injury in fact is, however, at issue. Elements of the injury in fact inquiry become difficult
to pin down where, such as here, a plaintiff seeks injunctive relief. The “actual,” “imminent,”
“particularized,” and “concrete” aspects of injury generally counsel against concluding that a
plaintiff has suffered an injury where that plaintiff (1) has not suffered tangible consequences from
the defendant’s purportedly illegal conduct; and (2) does not expect to suffer an injury
“imminently” because it is unclear when that plaintiff would try to access the good or service being
denied or inadequately provided.

In light of this, courts conduct a somewhat altered standing analysis where a plaintiff seeks
injunctive relief. In such instances, that plaintiff must “establish a real and immediate threat that
he would again [be injured by the defendant’s conduct].” Brown v. Fauver, 819 F.2d 395, 400 (3d
Cir. 1987) (citation and internal marks omitted). Courts evaluating claims under Title III of the
ADA (such claims can only seek equitable relief, excluding costs and attorney’s fees) have
implemented even more precise standards—the intent to return, deterrent effect, and tester
standards—to determine whether the plaintiffs in those cases have suffered a legal injury. (See
ECF No. 21 at 4). The Court will turn to consider whether Mullen has an injury in fact under any
of those three tests. Finkelman v. Nat'l Football League, 810 F.3d 187, 197 (3d Cir. 2016) (“We
will therefore examine the allegations in the complaint from a number of different angles to see if

Finkelman's purported injury can be framed in a way that satisfies Article III.”).
A. Intent to Return
The “intent to return” standing test says that courts should look to four factors to determine
whether the plaintiff has suffered an injury in fact: “(1) the plaintiff's proximity to the defendant's

place of public accommodation; (2) the plaintiff’s past patronage; (3) the definitiveness of the
plaintiff's plan to return; and (4) the plaintiff's frequency of nearby travel.” Anderson v. Macy's,
Inc., 943 F. Supp. 2d 531, 539 (W.D. Pa. 2013) (citing Harty v. Burlington Coat Factory of Pa.,
L.L.C., No. 11-cv-1923, 2011 WL 2415169, at *4 (E.D. Pa. June 16, 2011)). This is a factor test—
no one factor is dispositive, and all factors need not be present. Id.
Mullen has not sufficiently demonstrated that he has suffered an injury in fact under the

intent to return test. The Amended Complaint makes plain that Mullen has never stayed at
Defendant’s hotel, and his allegations concerning both his desire to stay at Defendant’s hotel and
the number of times Mullen would seek to return to Defendant’s hotel are quite sparse and
formulaic. That is, Mullen says that he wants to visit the attractions in the Laurel Highlands (ECF
No. 18 ¶ 17), but he does not say whether this trip would be a one-off or a recurring event, nor
does he explain the “when” and “why” of the desire to take this trip, nor does he demonstrate the
inevitability of an overnight stay as part of any such trip. While Mullen’s Amended Complaint
does state that he is a resident of Beaver County, PA, (id. ¶ 34), which is roughly two (2) hours
from Ligonier, Mullen does not state how or whether the distance between him and Defendant’s
hotel factors into the equation or whether an overnight stay anywhere is an inevitable component
of any sojourn he might make to the Laurel Highlands. Mullen’s Brief in Opposition does not
provide any further insight into the analysis that the Court is to conduct under this test. Instead,
that Brief merely recapitulates Mullen’s desire to have a “relaxing and restorative visit” at

Defendant’s hotel. (ECF No. 22 at 2). Such indefinite allegations fall far short of satisfying the
factors set forth by the intent to return test. Therefore, under this test, Mullen lacks an injury in
fact, and therefore, standing as well.
Perhaps sensing that the application of the intent to return to test would not turn out
favorably to him, Mullen argues that the Court should not utilize this test. (Id. at 3). In support of
this proposition, Mullen does not cite a single decision that disclaims or discounts the application
of the intent to return test. Instead, Mullen cites remarks from President George H.W. Bush about

how the ADA should be applied and federal standards and guidelines which, by Mullen’s own
admission, are flexible. (Id. at 4–5). Given that standing is a constitutional/prudential matter,
arguments about statutory interpretation are somewhat misplaced. Nevertheless, the parties seem
to agree that the intent to return test is not the only theory of standing that could potentially apply
to Mullen, so Mullen is correct in that his inability to satisfy the intent to return does not necessarily
mean that he (Mullen) lacks standing.

B. Deterrent Effect
“Under the deterrent effect test, a plaintiff is considered to have suffered an actual injury
when he or she is deterred from patronizing a public accommodation because of accessibility
barriers.” Anderson v. Franklin Inst., 185 F. Supp. 3d 628, 640 (E.D. Pa. 2016) (citation omitted).
“To satisfy this test, a plaintiff must show that he or she has actual knowledge of barriers
preventing equal access and a reasonable likelihood that the plaintiff would use the facility if not
for the barriers.” Garner v. VIST Bank, No. 12–5258, 2013 WL 6731903, at *6 (E.D. Pa. Dec. 20,
2013).2 Of the three injury tests, this one is where most of the disagreement between the parties
lies. Much of the dispute is centered around the applicability, or lack thereof, of the Third Circuit’s
decision in Mielo.

The Mielo plaintiffs brought a class action against Steak ‘n Shake, contending that Stake
‘n Shake’s restaurants were inaccessible to wheelchair-bound individuals. 897 F.3d at 473. Both
of the named plaintiffs in Mielo had difficulty navigating “steep” parking facilities at Steak ‘n
Shake locations that they had been to several times. Id. at 474. On appeal, the court concluded that
the plaintiffs had sufficiently alleged that they had suffered an injury and that the plaintiffs had
standing. Id. at 482. In reaching this conclusion, the court went to great lengths to analyze
standing’s injury element and stated that the plaintiffs “have sufficiently alleged a concrete harm

in the form of experiencing actual physical difficulty in ambulating through parking facilities
which are allegedly not ADA-compliant. Moreover, because Plaintiffs allege they personally
experienced these concrete injuries, we further conclude that they have sufficiently alleged an
injury that is particular to them.” Id. at 480. Importantly for these purposes, the court considered
deterrence as part of its analysis: “[T]he injury providing Plaintiffs with standing to seek injunctive
relief is not merely hypothetical or even imminent—it is actual, in that this allegedly unlawful
deterrence is something that Plaintiffs are currently suffering.” Id. at 480 n.15.

The parties dispute the significance of Mielo and, in particular, the quote pertaining to
deterrent effect. Defendant relies on the fact that the Mielo plaintiffs had actually been to the
locations that they (the Mielo plaintiffs) claimed were noncompliant with the ADA. Id. (“This

2 The actual knowledge requirement is not in dispute here. The Court’s conclusion under this test turns on whether
there is a reasonable likelihood that Mullen would visit the hotel if not for the alleged inaccessibility.
allegation is supported by record evidence illustrating that Plaintiffs have visited many Steak ‘n
Shake restaurant locations in the past, and that Plaintiffs enjoy the food offered at those
restaurants.”). Because Mullen has never been to the hotel in question here, and because the
Amended Complaint’s assertions about Mullen’s desire to visit the Laurel Highlands for an

overnight stay are vague and, at best, quite indefinite, Defendant argues that Mullen is not truly
“deterred” from staying at its property.
Defendant then cites a collection of cases from the District Courts within the Third Circuit
in support of its position. In Mortland v. Castle Hospitality, the court concluded that plaintiff had
standing where the plaintiff had already stayed at the hotel in question and intended to return to
that hotel because that hotel was close to a race complex at which he instructed multiple times per
year. No. 21-cv-1351, 2022 WL 3586661, at *1, *3 (W.D. Pa. Aug. 22, 2022). In Giterman v.

Pocono Medical Center, the court concluded that the Plaintiff lacked standing because she had no
“definitive appointment or plan to return to PMC for any treatment or test.” 361 F. Supp. 3d 392,
407 (M.D. Pa. 2019). And in Mahoney v. Waldameer Park, Inc., the court similarly concluded that
the plaintiff lacked standing because his “alleged intent to visit the park lacks the requisite
definitiveness. A vague, brief, unsupported assertion of intent to visit a public accommodation
once access barriers are removed is still akin to a ‘some day’ plan.” No. 20-cv-3960, 2021 WL
1193240, at *5 (E.D. Pa. Mar. 30, 2021)

Mullen, on the other hand, says that Defendant’s argument, to paraphrase, is essentially
“even though our discrimination against Mullen makes it impossible for Mullen to use our hotel,
he is still precluded from enforcing his rights because he has no firm plans to use the hotel.” (See
ECF No. 22 at 8). Mullen then goes on to cite a Ninth Circuit decision which says that an ADA
plaintiff need not have a “personal encounter” with an allegedly noncompliant hotel. C.R. Educ.
& Enf’t Ctr. V. Hosp. Props. Tr., 867 F.3d 1093, 1099 (9th Cir. 2017). This decision is in line with
statutory text regarding this topic. 42 U.S.C. § 12188(a)(1) (providing that an ADA plaintiff need
not engage in the “futile gesture” of attempting to gain access to show actual injury).

Taking these arguments one at a time, the Court concludes that Mielo is not instructive in
the present circumstances. The Mielo plaintiffs’ repeated visits to the noncompliant Steak ‘n Shake
locations is dissimilar to the instant matter given that Mullen has never been to Defendant’s hotel.
This reality undermines Mullen’s assertion that the Court should rely on Mielo to conclude that he
has standing. On the other hand, Mielo’s express reference to deterrent effect with respect to class
plaintiffs who, unlike the name plaintiffs in that case, had not visited the restaurant locations they
sought to enjoin makes Defendant’s arguments about Mielo’s reliance on actual visitation less
persuasive. In short, Mielo is too factually and procedurally distinct to move the needle for either

Mullen or Defendant.
Second, the facts in Defendant’s cited District Court cases are more akin to the facts here,
and because of that, those cases are more applicable than Mielo, especially Mahoney. There, the
court, conducting intent to return and deterrent effect tests, concluded that the plaintiff lacked
standing, due in part to Mahoney’s vague assertions about wanting to visit the defendant’s theme
park. Mahoney, 2021 WL 1193240, at *5–*6. Mahoney’s lack of ties to the area, id. at *5, coupled

with a lack of a demonstrated plan to visit along with supporting reasons, compelled the conclusion
that Mahoney lacked standing. Mahoney, though it involved website accessibility instead of
physical accessibility, suggests that a plaintiff cannot merely claim that they intend to visit a
location at some point in time down the road in order to generate standing under the deterrent
effect test. There has to be something more tangible—there need not be an attempt to visit, 42
U.S.C. § 12188(a)(1), but there has to be some firm suggestion, beyond a vague desire to visit the
region at some future date, that the plaintiff in cases such as this is substantially likely to visit the
facility in question if the alleged barriers are removed. An ADA plaintiff need not provide the
Court with a literary work detailing their itinerary, but where an ADA plaintiff has not visited the
facility in question, nor even pled that actual and definite plans to travel for an overnight stay in

the Laurel Highlands were made and then foregone due to the bed heights at the Defendant’s hotel,
the plaintiff’s averments about their desire to visit that facility should, at least, answer some basic
questions about actual and not theoretical travel plans, such as “when,” “why,” and “how often.”
To put it more simply, a “some day” plan, by itself, does not cut it. See Mahoney, 2021 WL
1193240, at *4.
Here, the questions and issues set forth above went unanswered in the Amended Complaint.
That is, there is nothing asserted in the Amended Complaint beyond Mullen’s broad desire to visit

the Laurel Highlands. Mullen spends two (2) paragraphs articulating his desire to patronize
Defendant’s hotel, and the most specific detail in either of those paragraphs is “[h]e specifically
desires to patronize Defendant’s hotel so that he has easy access to the historic town of Ligonier,
Pennsylvania.” (ECF No. 18 ¶ 17). While Mullen does assert that he was “previously” employed
by a disability rights organization on behalf of which he engaged in travel for work, the use of the
word “previously” indicates to the Court that Mullen’s employment, and by extension, his work-
related travel, is no longer ongoing. (Id. ¶¶ 10–12). This conclusion is buttressed by Mullen’s
“desire to visit the attractions in the Laurel Highlands,” which suggests a recreational trip
unconnected to work. (Id. ¶ 17). That is, there is no imminent, concrete, work-related travel

scheduled for Mullen during which he must stay at Defendant’s hotel. Mullen advances only a
general desire to visit the area in which Defendant’s hotel rests, and this general assertion, under
the applicable law, is not enough. Mullen has advanced only a “some day” plan.
A contrary conclusion would mean that any individual who broadly stated that they
intended to visit a general area “some day” would have standing to bring challenges to the ADA
compliance of any and all of that area’s public accommodations (assuming that the alleged
noncompliance of those public accommodations would cause those individuals an injury). This

far-reaching consequence is inconsistent with Article III’s particularity and imminence
requirements. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). Therefore, because
Mullen’s assertions regarding his desire to stay at Defendant’s hotel do not evidence a sufficient
likelihood that he actually and definitively would visit Defendant’s hotel absent the beds available
to him, Mullen does not have a particularized, imminent injury under the deterrent effect test,
either.
The Court is sympathetic to the reality that Mullen alleges that he is, as a practical matter,

unable to stay at Defendant’s hotel. The Court is not unaware of the ways in which Mullen’s
physical impairments might impact Mullen’s legal arguments given that the case law on point
favors a showing of a more tactile injury that Mullen is unable to provide given that he has never
visited Defendant’s hotel. Mullen’s other two cases on deterrent effect, outside of Mielo, go to
great lengths to rebut the proposition that an ADA plaintiff must personally encounter the alleged
noncompliance (i.e, actually visit the hotel) to have standing. Hosp. Props. Tr., 867 F.3d at 1099–
1100; Pickern v. Holiday Quality Foods, Inc., 293 F.3d 1133, 1136–37 (9th Cir. 2002).

But there is a distinction between holding that an ADA plaintiff must attempt to visit the
location at issue to have standing and holding that an ADA plaintiff must allege more than a mere
desire to one day visit the general regional location at issue. The Court is not holding that Mullen
must engage in the “futile gesture” of actually visiting Defendant’s hotel, finding a “too high” bed,
and then leaving. Instead, the Court’s conclusion rests upon the vagueness of Mullen’s rationale
for visiting Defendant’s hotel as part of a broad, indefinite, and generalized desire to tour the scenic
region in which the hotel is located; the record before the Court is just too barebones to cut it,
especially in light of the reality that the “‘[t]he party invoking federal jurisdiction bears the burden
of establishing’ the elements of standing,” notwithstanding the beneficial inferences drawn

towards plaintiffs at the motion to dismiss stage. FOCUS v. Allegheny Cnty. Ct. of Common Pleas,
75 F.3d 834, 838 (3d Cir. 1996) (citing Lujan, 504 U.S. at 561). The record before the Court falls
short of meeting that burden. Consequently, Mullen lacks an injury, and therefore, standing, under
the deterrent effect test.
C. Tester

Only in a footnote in his Amended Complaint, Mullen claims to be a tester. (ECF No. 18
¶ 26 n.3). Defendant, in its Motion to Dismiss and supplemental filings, argues that the Court
should conclude that Mullen does not have tester standing and should rely upon Justice Thomas’s
concurrence in Acheson to reach that conclusion. Mullen does not assert that he has tester standing
in the body of his Amended Complaint or in his Brief in Opposition to Defendant’s Motion to
Dismiss. Instead, he again utilizes only a footnote to advance his tester standing argument:
Plaintiff was previously employed as a professional disability rights advocate, and
he remains committed to advancing accessibility generally, particularly on behalf
of individuals with mobility disabilities. He is cognizant of the fact that causing
Defendant to offer beds that are accessible to him will also be impactful for other
disabled hotel consumers who use standard size wheelchairs. Thus, he is seeking
injunctive relief that is as broad as possible, and, in that capacity, he is acting not
only on his own behalf but as a tester on behalf of himself and other similarly
situated individuals.
(ECF No. 22 at 9 n.5).
First, the Court notes that passing reference to an argument only in a footnote (or, here,
footnotes) is highly disfavored. Courts at both the trial and appellate level have concluded that a
failure to raise an argument in the body of a brief or pleading means that argument is forfeited.
See, e.g., Lara v. Comm'r Pa. State Police, 91 F.4th 122, 140 n.28 (3d Cir. 2024) (citations
omitted); Higgins v. Bayada Home Health Care Inc., 62 F.4th 755, 763 (3d Cir. 2023); Purewick
Corp. v. Sage Prod., LLC, 666 F. Supp. 3d 419, 441 n.14 (D. Del. 2023); City of Phila. v. Bank of

Am. Corp., 498 F. Supp. 3d 516, 537 (S.D.N.Y. 2020); Greer v. Advanced Equities, Inc., 683 F.
Supp. 2d 761, 766 (N.D. Ill. 2010).
Here, Mullen did not raise tester standing anywhere in his Amended Complaint or Brief in
Opposition outside of the two footnotes cited above. And when he does raise tester standing via
those footnotes, he does not actually say that he is in fact operating as a tester, but as he phrases it,
he should be considered a tester if that gets him standing. Nevertheless, because tester standing
has been obliquely mentioned by Mullen and was discussed at length by Defendant in its Motion

to Dismiss, and because the Court previously Ordered the parties to address Justice Thomas’s
concurrence in Acheson, which thoroughly addressed tester standing, the Court will examine
whether Mullen has tester standing. See Mahoney, 2021 WL 1193240, at *7 (after noting that
Mahoney does not claim to be a tester, stating that “[t]he Court will nonetheless address ‘tester
standing’ in the event the Amended Complaint can be liberally construed to raise the issue”). But
see id. at *7 n.5 (“Some courts in this Circuit have declined to evaluate whether a plaintiff who
alleges personal motivations for visiting a public accommodation has tester standing.”) (citations
omitted). The Court nonetheless cautions the parties that the Court may not again consider
arguments that are not raised in the body of the parties’ filings. Merits arguments should not be

raised only in a footnote.
“A ‘tester’ is an individual who, without actual intent to avail themselves of the goods or
services of a public accommodation, nonetheless poses as a purchaser to collect evidence of
unlawful practices.” Mortland v. Omni Pittsburgh Corp., No. 18-cv-1067, 2021 WL 101560, at *3
(W.D. Pa. Jan. 12, 2021). Here, to the contrary, in his Amended Complaint, Mullen states that he
has an actual, but quite indefinite, desire to tour the Laurel Highlands and stay at the Defendant’s
hotel.

Whether testers who allege claims under Title III of the ADA have standing has not been
directly addressed by the Third Circuit, but courts in this District have held that ADA testers have
standing. Id. at *7 (citations omitted); Omni Pittsburgh, 2021 WL 101560, at *3; Heinzl v. Cracker
Barrel Old Country Stores, Inc., No. CV 14-1455, 2016 WL 2347367, at *1 (W.D. Pa. Jan. 27,
2016), report and recommendation adopted as modified sub nom. Heinzl v. Cracker Barrel Old
Country Store, Inc., No. 14-cv-1455, 2016 WL 1761963 (W.D. Pa. Apr. 29, 2016) (“[G]iven the
remedial purposes of Title III and the role assigned by Congress to private enforcement of its

provisions, the benefit of the doubt as to standing should be accorded even to the ‘tester’ plaintiff.”)
(citation and internal marks omitted); Murphy v. Bob Cochran Motors, Inc., No. 19-cv-239, 2020
WL 6731130, at *7 (W.D. Pa. Aug. 4, 2020), report and recommendation adopted, No. 19-cv-
239, 2020 WL 5757200 (W.D. Pa. Sept. 28, 2020) (“Here, Murphy should be afforded the benefit
of any doubt and his allegation that he was acting as an ADA tester gives him constitutional
standing to bring his claim.”). But cf. Macy's, Inc., 943 F. Supp. 2d at 541 n.12 (collecting cases
and rejecting the need to decide standing on a tester theory).

This Court has previously addressed tester standing in two of these cases: Cracker Barrel
and Macy’s. In Cracker Barrel, this Court adopted a report and recommendation that concluded
that the plaintiff class representative satisfied Federal Rule of Civil Procedure 23’s typicality
requirement via her status as a tester. 2016 WL 2347367, at *21. Importantly, however, with
respect to individual standing, this Court found that the plaintiff representative had previously
patronized the defendant accommodation, and as this Court then noted, “when a plaintiff has
presented a class action complaint, the issue of standing is limited to the plaintiff's individual
standing, not whether the plaintiff can challenge policies as they relate to a multitude of locations.
Rather, that is an issue of class certification.” Id. at *18. Thus, reliance on Cracker Barrel here is

misplaced, as (1) the plaintiff had previously patronized the defendant accommodation; and (2)
any discussion of tester standing in that case was specific to class action requirements under
Federal Rule of Civil Procedure 23, which are not at issue here.
As for Macy’s, after noting a circuit split on the issue of tester standing under the ADA,
this Court concluded that it would be “improvident” to decide tester standing in that case. Macy’s,
Inc., 943 F. Supp. 2d at 541 n.12. Thus, neither of this Court’s prior decisions that address tester
standing are binding on it here.

Further, those decisions are not controlling here in light of the substantial updates to the
case law since the decisions set forth above were issued. Consequently, the Court will not rely
only on the decisions of the courts in this District to assess whether Mullen has tester standing.

Those updates to case law on standing, and in particular, on the injury in fact requirement,
stem not from cases where the plaintiffs brought claims under the ADA, but from cases where the
plaintiffs brought claims under the Fair Credit Reporting Act.
In Spokeo v. Robins, the Supreme Court determined that certain intangible harms could
qualify as an injury in fact under Article III. 578 U.S. 330, 340–41 (2016). When determining
whether an intangible harm qualifies as an injury in fact, Spokeo instructs courts to “consider
whether an alleged intangible harm has a close relationship to a harm that has traditionally been

regarded as providing a basis for a lawsuit in English or American courts.” Id. at 341 (citation
omitted). Spokeo also counsels that “because Congress is well positioned to identify intangible
harms that meet minimum Article III requirements, its judgment is also instructive and important.”
Id. However, the Court cautioned that “Congress' role in identifying and elevating intangible harms
does not mean that a plaintiff automatically satisfies the injury-in-fact requirement whenever a

statute grants a person a statutory right and purports to authorize that person to sue to vindicate
that right.” Id. Even where Congress has identified a particular harm to be remedied via a given
statutory scheme, “Article III standing [still] requires a concrete injury.” Id. Thus, even though
Spokeo instructs courts to look to congressional action in determining whether a plaintiff has
suffered an injury in fact, congressional action is not necessarily probative, as Article III’s
requirements must be independently satisfied by a concrete injury that is “real, and not abstract.”
Id. at 340.

The Supreme Court further explained and applied Spokeo in TransUnion v. Ramirez. 594
U.S. 413 (2021). There, the Court affirmed that, in determining whether a plaintiff has suffered a
sufficiently concrete harm for purposes of Article III, courts should “ask[] whether plaintiffs have
identified a close historical or common-law analogue for their asserted injury.” Id. at 424.
However, the Court spent a significant portion of the Opinion explaining its guidance from Spokeo:
“Spokeo is not an open-ended invitation for federal courts to loosen Article III based on
contemporary, evolving beliefs about what kinds of suits should be heard in federal courts.” Id. at
424–25. The Court went on to cabin Spokeo’s language about the instructive nature of
congressional action when courts conduct a standing inquiry, stating that although “Congress may

create causes of action for plaintiffs to sue defendants who violate those legal prohibitions or
obligations, . . . under Article III, an injury in law is not an injury in fact.” Id. at 427. In sum, “the
fact that a given law or procedure is efficient, convenient, and useful in facilitating functions of
government, standing alone, will not save it if it is contrary to the Constitution.” Id. at 430–31
(citation omitted).

In applying these principles to certain members of the class in TransUnion, the Court
concluded that those class members failed to demonstrate that their risk of future harm was
sufficiently concrete because said risk of harm was too speculative. Id. at 438. The plaintiffs there
failed to demonstrate that there was a “sufficient likelihood” that they would be harmed by
TransUnion’s allegedly unlawful practices. Id.
In the wake of Spokeo and TransUnion, courts have applied the principles set forth above

to plaintiffs asserting claims under the ADA. In Calcano v. Swarovski North America Ltd., various
individuals brought suit under the ADA against stores that failed to carry braille gift cards. 36
F.4th 68, 71 (2d Cir. 2022). Applying Spokeo and TransUnion, the Calcano court stated that, in
the ADA context, the key inquiry is whether the plaintiff demonstrates an “intent to return based
on past visits and proximity . . . to ensure that ‘the risk of harm is sufficiently imminent and
substantial’ to establish standing.” Id. at 74–75 (quoting TransUnion, 594 U.S. at 435). Despite
the Calcano plaintiffs having visited the defendant stores in the past, the court concluded that the
plaintiffs’ “assertions of proximity and prior visits are vague, lacking in support, and do not
plausibly establish that Plaintiffs intended to return to the subject location.” Id. at 76 (citation and

internal marks omitted).
As to claims involving ADA compliance where the plaintiff has never personally visited
the defendant’s public accommodation, the courts of appeals are split. Laufer, herself a self-
described tester who scanned hotel websites in her effort to ensure that those websites were ADA
compliant and then brought suit against noncompliant defendants, single-handedly generated a
Circuit split before reaching the Court in Acheson. Acheson, 601 U.S. at 3. The Second, Fifth, and
Eleventh Circuits held that Laufer lacked standing. Laufer v. Ganesha Hosp. LLC, No. 21-995,
2022 WL 2444747 (2d Cir. July 5, 2022); Laufer v. Mann Hosp., L.L.C., 996 F.3d 269 (5th Cir.
2021); Laufer v. Looper, 22 F.4th 871 (10th Cir. 2022). The First, Fourth, and Eleventh Circuits
held that she had standing. Laufer v. Acheson Hotels, LLC, 50 F.4th 259 (1st Cir. 2022), vacated

as moot by 601 U.S. 1 (2023); Laufer v. Naranda Hotels, LLC, 60 F.4th 156 (4th Cir. 2023); Laufer
v. Arpan LLC, 29 F.4th 1268 (11th Cir. 2022), vacated as moot by 77 F.4th 1366 (11th Cir. 2023).3
Of the cases applying Spokeo and TransUnion’s principles to “tester” claims brought under
the ADA, Ganesha is most on point. In most of Laufer’s standing cases, Laufer acknowledged that
she had no intention of visiting the defendant hotel; in those cases, she was a “pure” rather a than
“hybrid” tester. But in Ganesha, like Mullen, Laufer said that she “intends to travel throughout the
entire State [of Connecticut] as soon as the Covid crisis is over.” Ganesha, 2022 WL 2444747, at

*2. Despite Laufer’s assertions of plans to visit the general area in which the defendant hotel was
located, the Court concluded that Laufer lacked standing, as the court rejected the “informational
harm” theory of standing where there were no “downstream consequences” of said informational
harm. Id. (citing Harty v. W. Point Realty, Inc., 28 F.4th 435, 444 (2d Cir. 2022)). That is, because
Laufer could not advance more than a “some day” plan to visit the area in which the defendant
hotel was located, she lacked a concrete injury. Id.

Here, like Laufer (and the Calcano plaintiffs), Mullen only alleges an indefinite, “some
day” plan to visit the area in which Defendant’s hotel is located. Like Laufer, he claimed (in

3 The D.C. and Seventh Circuits also considered whether Laufer had standing. The D.C. Circuit concluded that
Laufer lacked standing in a summary order, Laufer v. Alamac Inc., No. 21-7056, 2021 WL 4765435 (D.C. Cir. Sept.
10, 2021), and the Seventh Circuit stayed the appeal in Laufer’s case in light of the Supreme Court’s grant of
Certiorari in Acheson. Laufer v. Rasmus, No. 21-1360, 2023 WL 2754710 (7th Cir. Apr. 3, 2023); see also Ahslyn
Dewberry, Note, Testing the Limits of Virtual Compliance: “Tester” Plaintiffs, and Article III Standing Under the
ADA, 58 Ga. L. Rev. 935 (2024).
footnotes) to be a tester and contacted Defendant, via remote means, to determine whether
Defendant was compliant with the ADA. The only distinction between the two methods of
outreach is that Laufer browsed websites to ensure ADA compliance while Mullen placed a phone
call. That Laufer alleged “informational” harm for a noncompliant website whereas Mullen alleges

“actual” harm via a noncompliant hotel room is of no moment given that Mullen has never actually
attempted to visit, and advances no concrete plans to visit, Defendant’s hotel or the Laurel
Highlands. To put it more precisely, Mullen’s assertions about his intent to patronize Defendant’s
hotel are “vague, lacking in support, and do not plausibly establish that Plaintiff[] intend[s] to
return to the subject location.” Calcano, 36 F.4th at 76 (citation and internal marks omitted). Thus,
notwithstanding Mullen’s characterization of his injury, because Mullen has failed to visit
Defendant’s hotel and lacks a firm plan to do so in the future, he has suffered only informational
and/or stigmatic harm, both of which the Ganesha court rejected as insufficient to assert an injury
in fact under like circumstances. Ganesha, 2022 WL 2444747, at *2–*3.

This Court concludes that the path charted by the Ganesha court is instructive. An alleged
violation of the law, by itself, does not automatically confer upon this Court the judicial power to
resolve a case. Acheson, 601 U.S. at 11 (Thomas, J., concurring) (citing Cohens v. Virginia, 6
Wheat. 264, 405, 19 U.S. 264 (1821)); TransUnion, 594 U.S. at 427. To trigger the exercise of the
federal judicial power, a plaintiff must be herself “among the injured,” and a “some day” plan
“without any description or concrete plans” does not cut it. Lujan, 504 U.S. at 563, 564; see also
Cocano, 36 F.4th at 76.

Therefore, where, as here, a plaintiff brings a claim alleging that a public accommodation
is noncompliant with the ADA, that plaintiff, to sufficiently assert an injury in fact under a tester
theory, given that an injury be “concrete,” “imminent,” “actual,” and “particularized,” must have
either already personally visited that public accommodation or allege a specific and definite plan
to imminently visit that public accommodation. Vague generalizations about an intent to one day
visit the region in which the defendant accommodation is located are not enough. A contrary ruling
could allow testers to exercise “‘the sort of proactive enforcement discretion properly reserved to

the Executive Branch,’ with none of the corresponding accountability,” Acheson, 601 U.S. at 13
(Thomas, J., concurring) (citation omitted), and the notion that testers could become their own
private “attorneys general” in such circumstances is inconsistent with the case or controversy
requirement of the Constitution and with the statutory scheme of Title III of the ADA given that
such does not provide for what are essentially qui tam actions.
Here, Mullen has asserted little beyond an indefinite plan to visit the region in which
Defendant’s hotel is located and a desire, on behalf of all similarly situated individuals, to ensure

that Defendant’s hotel is ADA compliant. Mullen has also failed to assert any historical analogue
for the type of harm that he has allegedly suffered that demonstrates that his alleged harm here is
one that has been historically recognized as a legally cognizable injury. Under a tester theory, such
unspecified assertions and a lack of historical support do not confer upon Mullen an injury in fact,
and therefore, Mullen lacks standing.
IV. Conclusion

Because Mullen has not demonstrated that he has suffered an injury in fact under the intent
to return, deterrent effect, and tester standards, Mullen does not have standing. Accordingly,
Defendant’s Motion to Dismiss is GRANTED.
Because this dismissal is for want of subject matter jurisdiction, and because the Court

cannot conclude that the deficiencies in Mullen’s Amended Complaint could not be cured by
further amendment, granting leave for amendment is the proper course. Korvettes, Inc. v. Brous,
617 F.2d 1021, 1024 (3d Cir. 1980) (“A dismissal for lack of jurisdiction is plainly not a
determination of the merits of a claim. Ordinarily, such a dismissal is ‘without prejudice.’”);
Cottrell v. Alcon Lab’ys, 874 F.3d 154, 164 n.7 (3d Cir. 2017); Mahoney, 2021 WL 1193240 at *3

(concluding that Rule 15(a) permits plaintiffs to cure subject matter jurisdiction defects and that
the time of filing rule is not implicated where the amended complaint does not raise new
allegations). The Court does note that repeated failure to cure deficiencies in the complaint is a
basis for dismissal with prejudice. Foman v. Davis, 371 U.S. 178, 182 (1962); First Annapolis
Bancorp, Inc. v. United States, 109 Fed. Cl. 646, 649 (2013) (stating that dismissals for lack of
standing should generally be without prejudice subject to the condition that “a dismissal with
prejudice is . . . appropriate . . . where it [is] plainly unlikely that the plaintiff [will be] able to cure
the standing problem.”). Thus, given the details and reasoning set out in this Opinion, absent
extraordinary circumstances, the filing of a Second Amended Complaint will be Mullen’s last shot
at advancing his claims in this Court.

Mullen’s Second Amended Complaint, should he elect to file one, shall be filed not later
than twenty-one (21) days from the date of this Order. Defendant’s response to a Second Amended
Complaint, whether it takes the form of an Answer or a Federal Rule of Civil Procedure 12 Motion,
is due within twenty-one (21) days of the filing of Mullen’s Second Amended Complaint.

An appropriate Order will issue.
s/ Mark R. Hornak
Mark R. Hornak
Chief United States District Judge

Dated: March 5, 2024

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10419479. Public record. Not legal advice.