Pickern v. Pier 1 Imports (U.S.), Inc.
| Decision Date | 26 July 2006 |
| Docket Number | No. 04-17118.,04-17118. |
| Citation | 457 F.3d 963 |
| Parties | Brenda PICKERN, Plaintiff-Appellant, v. PIER 1 IMPORTS (U.S.), INC.; Siegmund Weinstock Family Trust, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Scottlynn J. Hubbard, IV, Law Offices of Lynn Hubbard, Chico, CA, for the appellant.
Laura M. Franze, Roland M. Juarez, and Richard Cortez, Jr., Akin Gump Strauss Hauer & Feld LLP, Dallas, TX, and Kristine A. Samsel, Akin Gump Strauss Hauer & Feld LLP, Washington, DC, for the appellees.
Appeal from the United States District Court for the Eastern District of California; Frank C. Damrell, District Judge, Presiding. D.C. No. CV-03-00121-FCD/JFM.
Before PROCTER HUG, JR., ARTHUR L. ALARCÓN, and M. MARGARET McKEOWN, Circuit Judges.
The mandate issued on May 8, 2006 is hereby recalled. The request to publish the unpublished Memorandum disposition is granted. The Memorandum disposition filed April 14, 2006, is withdrawn and replaced with an opinion authored by Judge Hug.
OPINIONBrenda Pickern appeals the district court's grant of summary judgment to defendants/appellees Pier 1 Imports (U.S.), Inc. and Siegmund Weinstock Family Trust (collectively "the Appellees"). In granting summary judgment, the district court held that the Appellees had no obligation under Title III of the Americans with Disabilities Act ("ADA") to build an access ramp to the Pier 1 Imports store ("the Store") over land owned and operated by the City of Chico. The district court also decided that it need not address allegations of additional ADA violations because Pickern's pleadings did not provide sufficient notice of those allegations and because Pickern submitted the expert report supporting those allegations after the deadline contained in the court's scheduling order. We affirm.
Pickern is a visually-impaired and mobility-impaired woman who depends on an electric wheelchair for transportation. Pier 1 Imports (U.S.), Inc. operates the Store and the Siegmund Weinstock Family Trust is Pier 1's landlord. The Store is located at 1931 East 20th Street in Chico, California and is separated from 20th Street by a long strip of land that contains a public sidewalk and a ten-foot wide grassy berm; the grassy strip lies between the sidewalk and the Store property. No access ramp connects the sidewalk to the Store's parking lot. The sidewalk is not within the boundary of the property owned by the Siegmund Weinstock Family Trust. The City of Chico owns both the grassy strip and the sidewalk. The Appellees do not own or lease the strip of land, and do not mow, maintain, or manage it. It is undisputed that the City had exclusive control over the design and construction of the sidewalk.
Pickern cannot traverse the grassy strip in her wheelchair. Instead, she can access the Store by proceeding down the sidewalk along 20th Street to one of two main Mall entrances or to one of the several access ramps connecting the sidewalk to the Mall parking lot. On or about December 2002, Pickern's attorney requested that the Appellees construct an access ramp from the public sidewalk across the grass to connect the sidewalk to the Store parking lot. The Appellees responded that they were not obligated to build such a ramp because they did not own the property.
On January 23, 2003, Pickern filed a complaint alleging claims for violation of the ADA. In the complaint, Pickern alleged that the Appellees violated Title III of the ADA by failing to remove architectural barriers. Although Pickern included long lists of possible architectural barriers such as the failure to widen doors, remove obstructing furniture, and provide Brailled, raised, and accessible signage, she did not actually allege that any of these specific barriers existed. Instead, she alleged that the Appellees' failure to remove architectural barriers "may include, but is not limited to" these specific barriers.
The district court entered a Scheduling Order on May 12, 2003, setting January 20, 2004 as the deadline for parties to designate experts and submit written expert reports. The Scheduling Order stated:
All counsel are to designate in writing, file with the court, and serve upon all other parties the name, address, and area of expertise of each expert that they propose to tender at trial not later than January 20, 2004. The designation shall be accompanied by a written report prepared and signed by the witness. The report shall comply with Fed. R.Civ.P. 26(a)(2)(B).
The Scheduling Order also stated: "Failure of a party to comply with the disclosure schedule as set forth above in all likelihood will preclude that party from calling the expert witness at the time of trial." The Scheduling Order set a deadline of March 22, 2004 for the completion of all discovery.
On February 19, 2004, the Appellees filed a motion for summary judgment. On April 30, 2004, Pickern filed a motion for summary adjudication regarding the Appellees' liability for not constructing the access ramp.
On April 16, 2004, after the close of discovery and in response to the Appellees' motion for summary judgment, Pickern raised allegations of accessibility violations unrelated to the ramp across the grassy strip of land. On that date, Pickern filed an expert's declaration from Joe Card with a report identifying alleged accessibility violations related to the slope of ramps, cross-slope of sidewalks, emergency fire exits, and emergency landings.
The district court granted the Appellees' motion for summary judgment and denied Pickern's motion for summary adjudication, holding that the Appellees had no obligation to build an access ramp over the grassy strip of land that belonged to the City of Chico. As part of its decision, the district court disallowed Pickern's new assertions of alleged accessibility violations that she raised before the court for the first time following the Appellees' motion for summary judgment. The court reasoned that those allegations were not contained in the complaint and Pickern had not amended or sought to amend the complaint to include those allegations.
The court also reasoned that Pickern offered no competent evidence to support the new claims because the only evidence submitted was the untimely expert report; the court refused to consider that report because Pickern had failed to comply with the Scheduling Order.
We review de novo a district court's order granting summary judgment. Navellier v. Sletten, 262 F.3d 923, 938 (9th Cir.2001). Viewing the evidence in the light most favorable to the nonmoving party, we must determine whether there are any genuine issues of material fact and whether the district court correctly applied the law. Id.
For at least two reasons, Title III of the ADA requires that the Appellees in this case control the grassy strip of land in order to be subject to liability for failing to build a ramp over that land. First, the operative rule in Title III provides: "No individual shall be discriminated against 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 by any person who owns, leases (or leases to), or operates a place of public accommodation." 42 U.S.C. § 12182(a) (emphasis added).
It is undisputed that the Appellees do not own or lease the grassy area at issue here. The City of Chico owns that land. Since the Appellees do not own or lease the strip of grass, they must "operate" the strip of grass in order to be liable under Title III. In this context, "operate" means "to put or keep in operation," "to control or direct the functioning of," or "to conduct the affairs of; manage." Lentini v. Cal. Ctr. for the Arts, Escondido, 370 F.3d 837, 849 (9th Cir.2004) (internal quotations omitted).
Second, "discrimination" includes "failure to remove architectural barriers . . . in existing facilities . . . where such removal is readily achievable." 42 U.S.C. § 12182(b)(2) (A)(iv) (emphasis added). According to the Department of Justice's ("DOJ") regulations implementing the ADA, "[t]he definition of `facility' only includes the site over which the private entity may exercise control or on which a place of public accommodation1 or a commercial facility is located." Department of Justice Preamble to Regulation on Nondiscrimination of the Basis of Disability by Public Accommodations and in Commercial Facilities, 28 C.F.R. pt. 36, App. B at 681 (2005) (emphasis added).
The Appellees do not manage the strip of grass, mow it, or maintain it in any manner. There is no evidence at all that the Appellees engage in any conduct that would demonstrate that they control or otherwise operate the grassy strip.2 In fact, although Pickern originally argued that the Appellees control the grassy strip of land, in her reply brief, she conceded that the Appellees do not control or manage the grassy strip.
Pickern now claims that it is sufficient if the appellees could control or manage the grassy strip and she advances multiple arguments designed to prove that the Appellees could obtain control over the grassy strip. We need not determine whether the Appellees could obtain such control. Section 12182(a) prohibits discrimination only by people who own, lease, or operate a place of public accommodation. The statute says nothing about liability by persons who could operate a place of public accommodation.
Pickern's insistence that the ADA requires the Appellees to seek permission from the City of Chico to build an accessible route over the City's land finds no support in the law. In fact, the DOJ has made it clear that private entities are not required to seek such permission. See 28 C.F.R. pt. 36, App. B at 715 (...
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