Pickern v. Pier 1 Imports (U.S.), Inc. ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRENDA PICKERN,  No. 04-17118
Plaintiff-Appellant,
D.C. No.
v.
PIER 1 IMPORTS (U.S.), INC.;  CV-03-00121-
FCD/JFM
SIEGMUND WEINSTOCK FAMILY
ORDER AND
TRUST,
OPINION
Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of California
Frank C. Damrell, District Judge, Presiding
Argued and Submitted
February 13, 2006—San Francisco, California
Filed July 26, 2006
Before: Procter Hug, Jr., Arthur L. Alarcón, and
M. Margaret McKeown, Circuit Judges.
Opinion by Judge Hug
8403
PICKERN v. PIER 1 IMPORTS (U.S.), INC. 8405
COUNSEL
Scottlynn J. Hubbard, IV, Law Offices of Lynn Hubbard,
Chico, California, for the appellant.
Richard Cortez, Jr. and Laura M. Franze, Akin Gump Strauss
Hauer & Feld LLP, Dallas Texas, for the appellees.
8406 PICKERN v. PIER 1 IMPORTS (U.S.), INC.
ORDER
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request to publish the unpublished Memorandum disposition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is withdrawn and replaced with an opinion authored by Judge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.
OPINION
HUG, Circuit Judge:
Brenda Pickern appeals the district court’s grant of sum-
mary 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 sub-
mitted the expert report supporting those allegations after the
deadline contained in the court’s scheduling order. We affirm.
I. Factual and Procedural Background
Pickern is a visually-impaired and mobility-impaired
woman who depends on an electric wheelchair for transporta-
tion. 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 prop-
PICKERN v. PIER 1 IMPORTS (U.S.), INC. 8407
erty. 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 side-
walk. 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, Pick-
ern’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,
8408 PICKERN v. PIER 1 IMPORTS (U.S.), INC.
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 com-
ply with the disclosure schedule as set forth above in all like-
lihood 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, Pick-
ern 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 sum-
mary 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 dis-
trict 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 judg-
ment. The court reasoned that those allegations were not con-
tained in the complaint and Pickern had not amended or
sought to amend the complaint to include those allegations.
PICKERN v. PIER 1 IMPORTS (U.S.), INC. 8409
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.
II. Discussion
A. The Access Ramp
We review de novo a district court’s order granting sum-
mary 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.[1] 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, ser-
vices, 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 accommo-
dation.” 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) (inter-
nal quotations omitted).
8410 PICKERN v. PIER 1 IMPORTS (U.S.), INC.
[2] 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 Nondis-
crimination of the Basis of Disability by Public Accommoda-
tions and in Commercial Facilities, 28 C.F.R. pt. 36, App. B
at 681 (2005) (emphasis added).
[3] 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 demon-
strate 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 con-
ceded that the Appellees do not control or manage the grassy
strip.
1
The issue of who operates the grassy strip is related to the issue of
whether the disputed property even qualifies as a place of public accom-
modation. The DOJ has stated that
[f]acilities operated by government agencies or other public enti-
ties as defined in this section do not qualify as places of public
accommodation. The actions of public entities are governed by
title II of the ADA and will be subject to regulations issued by
the Department of Justice under that title.
28 C.F.R. pt. 36, App. B at 681 (emphasis added). All of the evidence in
the instant case supports the conclusion that the City of Chico, a public
entity, operates the strip of land at issue.
2
Relying on a tortured interpretation of guidelines that were never
adopted by the DOJ, Pickern argues for the first time on appeal that the
grassy strip is part of the “site” because it is a park and the definition of
site includes a park sandwiched in between a private property owner’s
property line and a public road or sidewalk. This argument is not only
illogical and incorrect, but irrelevant. Regardless of the definition of
“site,” to be liable, the Appellees must control the grassy strip.
PICKERN v. PIER 1 IMPORTS (U.S.), INC. 8411
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 deter-
mine whether the Appellees could obtain such control. Sec-
tion 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
(“[T]here is no obligation for a private entity subject to title
III of the ADA to seek or ensure compliance by a public
entity with title II . . . . and any involvement by a private
entity in seeking cooperation from a public entity is purely
voluntary in this context.”).
Given that the Appellees do not control or otherwise oper-
ate the grassy strip, Pickern’s other arguments are irrelevant.
Pickern attempts to rely on Disabled Rights Action Comm. v.
Las Vegas Events, Inc., 375 F.3d 861 (9th Cir. 2004) and
Independent Living Res. v. Oregon Arena Corp., 1 F. Supp.
2d 1124 (D. Or. 1998) to support her claim that the Appellees
can be held liable under the ADA even though the strip of
land is owned by the City of Chico. These cases clearly are
inapposite. Both cases simply stand for the proposition that
private entities who enter into contractual agreements with
public entities to lease or to manage, maintain, or otherwise
control property owned by a public entity may be subject to
Title III liability under certain conditions. See Disabled
Rights, 375 F.3d at 872-76 (holding that private entity that
operated a public accommodation on public property pursuant
to a contract with a public entity could be liable under Title
III of the ADA); Independent Living, 1 F. Supp. 2d at 1148
8412 PICKERN v. PIER 1 IMPORTS (U.S.), INC.
(holding that the private entity that had, pursuant to a contract
with the city, designed and built walks that failed to comply
with ADA design standards, could be held liable under the
ADA even though a small part of these walks was outside the
boundary of the private entity’s site).3
[4] There is nothing in these cases to support the proposi-
tion that a private entity may be held liable under the ADA
for discrimination that takes place on property it has not
owned, leased, or controlled.4 These cases simply do not
apply to the instant case because there is no evidence that the
Appellees own, lease, or control the grassy strip of land.
Unlike the defendants in these cases, the Appellees in the
instant case have not entered into contractual agreements with
the City that would have provided them with control over the
grassy strip.
[5] We therefore hold that the district court properly ruled
that the Appellees were not required to build an access ramp
across the grassy strip.
3
The issue in the instant case is who, if anyone, is responsible under the
ADA for designing and installing a route where one does not already exist.
The issue in Independent Living was quite different. There, the court was
determining whether a private entity that had constructed and designed a
route could be held liable for improper design standards. See Independent
Living, 1 F. Supp. 2d at 1148. The court held that the private entity was
liable for its faulty design of the walks. Id. The court did not provide any
citations to law in reaching these conclusions, but the liability was based
on the fact that the private entity was the designer of the walks. See id.Therefore, the legal principles applicable there would not be applicable in
the instant case.
4
In fact, in Independent Living, the court did not impose liability on the
private entity for the inadequate design of routes on public property where
the private entity had not controlled the design and construction of those
routes. Independent Living, 1 F. Supp. 2d at 1148.
PICKERN v. PIER 1 IMPORTS (U.S.), INC. 8413
B. The New ADA Allegations
We review de novo a district court’s determination of
whether a plaintiff’s complaint complied with the notice
pleading requirements of Fed. R. Civ. P. 8. In re Dominguez,
51 F.3d 1502, 1508 n.5 (9th Cir. 1995). We review a discov-
ery sanction, including the exclusion of an expert’s testimony
for failure to comply with a scheduling order, for abuse of dis-
cretion. Wong v. Regents of Univ. of Cal., 410 F.3d 1052,
1060 (9th Cir. 2005).
[6] In response to the motion for summary judgment, Pick-
ern raised issues of ADA violations that went beyond a failure
to provide a ramp. Pickern attempts to justify these new fac-
tual allegations as falling within the original complaint under
Rule 8’s liberal notice pleading standard. The district court
did not err by holding that Pickern failed to provide the
Appellees with adequate notice of these new allegations. Fed-
eral Rule of Civil Procedure 8(a)(2) requires that the allega-
tions in the complaint “give the defendant fair notice of what
the plaintiff’s claim is and the grounds upon which it rests.”
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002) (quo-
tation omitted). In her complaint, Pickern made it clear what
her claim was when she alleged that the Store “contains archi-
tectural barriers that make it inaccessible.” She did not, how-
ever, provide any notice concerning the grounds upon which
she based this claim. Pickern’s complaint included lists of
barriers that she now characterizes as illustrative of the kinds
of barriers a disabled person may confront. She alleged that
the Appellees’ failure to remove architectural barriers “may
include, but is not limited to” these specific barriers. How-
ever, she did not allege that any of these barriers actually
existed at the Store. Providing a list of hypothetical possible
barriers is not a substitute for investigating and alleging the
grounds for a claim. Thus, the complaint gave the Appellees
no notice of the specific factual allegations presented for the
first time in Pickern’s opposition to summary judgment.
8414 PICKERN v. PIER 1 IMPORTS (U.S.), INC.
[7] Although the new allegations were not part of the origi-
nal complaint, Pickern might have proceeded by filing a
timely motion to amend the complaint. However, Pickern did
not amend the complaint to include more specific allegations.
She also did not incorporate the “preliminary site report” into
her complaint. Instead, it appears that, many months after fil-
ing the complaint, she merely provided a “preliminary site
report” to the Appellees as part of settlement negotiations.
This did not make the preliminary site report part of the
record and it did not give the Appellees notice of what allega-
tions Pickern was including in the suit. In addition, because
the expert’s report was not filed and served until after the dis-
covery deadline, that report cannot be construed as notice that
would prompt the Appellees to seek discovery regarding the
new allegations.5 Thus, the district court did not err in finding
that Pickern failed to provide adequate notice of the new alle-
gations.
Accordingly, the judgment of the district court is
AFFIRMED.
5
The district court did not abuse its discretion by deciding not to allow
the testimony of Pickern’s expert, Joe Card. It is not an abuse of discretion
to exclude a party’s expert testimony when that party failed to disclose the
expert report by the scheduling deadline and that party reasonably could
have anticipated the necessity of the witness at the time of the deadline.
Wong, 410 F.3d at 1060. Pickern failed to file and serve the expert report
by the deadline set forth in the scheduling order even though she clearly
anticipated the need for that report.