Oliver v. Ralphs Grocery Co.

• Decision Date: 17 August 2011
• Docket Number: No. 09–56447.,09–56447.
• Citation: 654 F.3d 903,25 A.D. Cases 119,11 Cal. Daily Op. Serv. 10456,43 NDLR P 229,2011 Daily Journal D.A.R. 12469
• Parties: A.J. OLIVER, Plaintiff–Appellant,v.RALPHS GROCERY COMPANY, dba Food 4 Less No. 780; Cypress Creek Co., LP, dba PTC Investments Company, Defendants–Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

654 F.3d 903

25 A.D. Cases 119

43 NDLR P 229

11 Cal. Daily Op. Serv. 10,456

2011 Daily Journal D.A.R. 12,469

A.J. OLIVER, Plaintiff–Appellant,

v.RALPHS GROCERY COMPANY, dba Food 4 Less No. 780; Cypress Creek Co., LP, dba PTC Investments Company, Defendants–Appellees.

No. 09–56447.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 7, 2011.Filed Aug. 17, 2011.

Lynn Hubbard, III, Chico, CA, for plaintiff/appellant A.J. Oliver.Scottlynn J. Hubbard, Chico, CA, for plaintiff/appellant A.J. Oliver.Gregory F. Hurley, Greenberg Traurig, LLP, Irvine, CA, for defendant/appellee Ralphs Grocery Company.Spencer C. Skeen, Fisher & Phillips, LLP, San Diego, CA, for defendant/appellee Cypress Creek Company, LP.Appeal from the United States District Court for the Southern District of California, Janis L. Sammartino, District Judge, Presiding. D.C. No. 3:07–cv–02301–JLS–POR.Before: PAMELA ANN RYMER, CONSUELO M. CALLAHAN, and SANDRA S. IKUTA, Circuit Judges.

OPINION

IKUTA, Circuit Judge:

A.J. Oliver is a disabled individual who requires the use of a motorized wheelchair to get around. On December 7, 2007, Oliver filed a lawsuit against Ralphs Grocery Company (“Ralphs”) and Cypress Creek Company (“Cypress Creek”) alleging that a Food 4 Less grocery store in Chula Vista, California did not comply with the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. §§ 12101 12213, and certain state laws.¹ The district court granted summary judgment to the defendants on Oliver's ADA claim and dismissed his state law claims without prejudice. We affirm.

I

A

In order to address Oliver's arguments, it is first necessary to understand the requirements imposed by the ADA. Title III of the ADA prohibits discrimination on the basis of disability in the “full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation” with a nexus in interstate commerce. 42 U.S.C. §§ 2000a(b), 12182(a).² Compliance with the ADA requires that new facilities be “readily accessible to and usable by individuals with disabilities,” unless this would be “structurally impracticable.” § 12183(a)(1).³

In general, a facility is “readily accessible to and usable by individuals with disabilities” if it meets the requirements promulgated by the Attorney General in the “ADA Accessibility Guidelines” or the “ADAAG,” which is essentially an encyclopedia of design standards. See 28 C.F.R. § 36.406; see also 28 C.F.R. pt. 36, app. A; Chapman v. Pier 1 Imports (U.S.), Inc., 631 F.3d 939, 945–46 (9th Cir.2011) (en banc); United States v. AMC Entm't, Inc., 549 F.3d 760, 763 (9th Cir.2008).⁴ If a particular architectural feature of a place of public accommodation is inconsistent with the ADAAG, a plaintiff can bring a civil action claiming that the feature constitutes a barrier that denies the plaintiff full and equal enjoyment of the premises in violation of the ADA. See §§ 2000a–3(a), 12188(a)(2). Because a private plaintiff can sue only for injunctive relief (i.e., for removal of the barrier) under the ADA, see id., a defendant's voluntary removal of alleged barriers prior to trial can have the effect of mooting a plaintiff's ADA claim. See Hubbard v. 7–Eleven, Inc., 433 F.Supp.2d 1134, 1145 (S.D.Cal.2006); cf. Am. Cargo Transp., Inc. v. United States, 625 F.3d 1176, 1179–80 (9th Cir.2010). The ADA provides for attorneys' fees and costs for prevailing plaintiffs, however, see § 12205, and ADA plaintiffs frequently seek damages by bringing parallel claims under applicable state civil rights laws.

B

On December 7, 2007, Oliver filed a complaint in federal district court alleging that he had visited the Chula Vista Food 4 Less store and “encountered barriers (both physical and intangible) that interfered with—if not outright denied—his ability to use and enjoy the goods, services, privileges, and accommodations offered” at the facility. The complaint also stated that, “[t]o the extent known by Oliver, the barriers at the Food 4 Less included, but [we]re not limited to” 18 separate architectural features.⁵ Claiming that the existence of these barriers amounted to discrimination against him on the basis of his disability, Oliver sought injunctive relief, attorneys' fees, and legal expenses under the ADA, as well as money damages through two parallel state law claims.⁶

Shortly after receiving Oliver's complaint, Ralphs began renovations at the store. During this process, Ralphs removed several of the barriers Oliver had identified in his complaint. At a pre-trial scheduling conference on May 14, 2008, Oliver stated his intention to amend his complaint to allege the existence of additional architectural features at the store which violated the ADA. The parties agreed on June 13, 2008 as the deadline for filing amended pleadings, and the magistrate judge issued a scheduling order to that effect.

Oliver did not file an amended complaint by the June 13, 2008 deadline. Rather, on June 30, 2008, after the deadline for filing amended pleadings had passed, Oliver filed a motion to modify the scheduling order and a motion to amend his complaint to identify six additional architectural features at the store that allegedly violated the ADA. The district court determined that Oliver had failed to show good cause to modify the scheduling order, see Fed.R.Civ.P. 16(b), and denied Oliver's motion. A little over four months later, Oliver filed an expert report identifying approximately 20 “architectural barriers” at the Food 4 Less store. This expert report provided additional detail concerning some of the barriers already identified in Oliver's complaint, but also added several additional barriers that had not been listed in the complaint (e.g., telephone and transaction counter accessibility issues).⁷

The parties subsequently filed cross-motions for summary judgment, and the district court granted summary judgment to Ralphs and Cypress Creek. In doing so, the court ruled that it would not consider the barriers listed in Oliver's expert report, because they were not properly before the court. The court then reviewed each of the 18 architectural barriers listed in the complaint and ruled against Oliver on all of them. Specifically, the court: (1) ruled that Oliver had conceded summary judgment as to some of the barriers, (2) granted summary judgment to the defendants as to others, and (3) found that others were moot because they had already been remedied. Finally, the district court declined to exercise supplemental jurisdiction over Oliver's state law claims and dismissed them without prejudice.

II

On appeal, Oliver challenges three of the district court's rulings. First, he contends that the district court erred in refusing to consider the allegations in his expert report.⁸ Second, he argues that the district court erred in granting summary judgment to the defendants as to the barriers he claimed violated California's Manual on Uniform Traffic Control Devices (MUTCD), which was based on the district court's conclusion that violations of the California MUTCD are not per se violations of the ADA. Finally, he contends that the district court abused its discretion in declining to exercise supplemental jurisdiction over his state law claims.

A

Before we can reach these issues, however, we must address a threshold question: whether in light of our recent decision in Chapman v. Pier 1 Imports, Oliver adequately established his standing to bring this action. Although neither Ralphs nor Cypress Creek raised the issue of standing before the district court or on appeal, we “must[ ] resolve any doubts about this constitutional issue sua sponte.” City of L.A. v. Cnty. of Kern, 581 F.3d 841, 845 (9th Cir.2009).

The “irreducible constitutional minimum of standing” includes three elements: (1) injury in fact; (2) causation; and (3) redressability. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). In Chapman, we explained that a disabled person suffers an injury in fact when he “encounter[s] a barrier” at a place of public accommodation “that deprives him of full and equal enjoyment of the facility due to his particular disability.” 631 F.3d at 944. Chapman's complaint did not adequately allege such an injury in fact, however, because it merely included a lengthy list of alleged barriers without identifying which barriers Chapman had encountered or establishing how they had affected his specific disability. Id. at 955. Because Chapman did not cure this jurisdictional defect later in the litigation, id. at 954, we vacated the judgment and remanded with instructions for the district court to dismiss the case for lack of jurisdiction. See id. at 955.

The jurisdictional allegations in Oliver's complaint are almost identical to those we found deficient in Chapman. Although Oliver's complaint stated that he had encountered barriers at the store and provided a list of alleged barriers, it did not specify which (if any) Oliver had personally encountered or explain “how his disability was affected by [any of] them so as to deny him ... ‘full and equal’ access” to the store. Id. at 954. Thus, Oliver's complaint, like the complaint in Chapman, was “jurisdictionally defective.” Id.

Nevertheless, we need not dismiss Oliver's action. In Chapman, not only were Chapman's jurisdictional allegations insufficient, but the necessary jurisdictional facts were absent from the record. See Newman–Green, Inc. v. Alfonzo–Larrain, 490 U.S. 826, 832, 109 S.Ct. 2218, 104 L.Ed.2d 893 (1989) (noting that appellate courts can “remedy inadequate jurisdictional allegations” under 28 U.S.C. § 1653, but not “defective jurisdictional facts”). In this case, by contrast, there is sufficient evidence in the record to establish that Oliver suffered an injury in fact. In support of his cross-motion for summary judgment, for example, Oliver filed a sworn declaration stating that he had visited...