case would need to go back down to the district court this case is somewhat similar to another case where two of the judges or on this panel were part of the opinion dancy anthony's and it comes down to what is sufficient to put a defendant on notice that a particular architectural barrier is within the scope of the complaint so were these were the curb  players the excessive slope was present however it is because there was no accessible route there's no way for mystical shimer anyone to know whether or not that matters ramp to get an accessible route so so what what the counter from opposing counsel is that somehow the curb ramp players are excepted me understand ok what that means so  players themselves could be part of the normal path of travel for individual and wheelchair so from a practical standpoint if you are at if you're going down the sidewalk and there is a curb preamp and you needed to go across it down over and up you could go across the current players as long as they didn't have a slope greater than one dollar to twelve dollars and that would be if there was not a space at the top of the curb ramp where you could bypass those flares ok so that you didn't have to have a landing at the top where somebody if they're going the opposite direction of the curb ramp could go past without going over that if because as you all know that curbs frequently cut into the sidewalk and people go in the opposite direction of where it's going and the idea is that you have to have an accessible route that goes around the curb it doesn't go over the slayer's when you're going in the opposite direction of the curb ramp so well it's true it says that curb reply is not part of the excess wore out they're not talking about in this type of instance where and six which states what is necessary for compliant program and that includes what is necessary for current players what do you do with for two dollars words says curb ramps excluding the flared yes and that's what i was talking about as in the direction of travel cannot be over the curb area for the accessible route and that's where the changes from ninety one to two thousand and ten it's not saying that the curb ramps you don't because if you say that where there was a question about whether or not the real players needed to be compliant and the judge said that it doesn't matter is this in your proof or no this is a different case but it doesn't matter because there is an alternative accessible route so the point is if the current is part of the accessible route the curb ramp as a whole has to be compliant because for all six which governs curb ramps includes the players whether or not it's supposed to be the primary path of travel for an individual in a wheelchair they sort of other functions even if it is not the primary goal for an individual in the wheelchair to travel over those on their path to and from the exit photos no more general provision of the right one is really accessible route specific must the complaint be to put somebody on notice of a particular problem so in this instance how this how the story was set up there were multiple possibilities of how holiday would fix the problem with their accessible route and it's possible that they could have fixed it without going over that real they could have had made the access will route from the door six and these are changes that were made to this complaint in part because of the district court of nebraska case that two of the judges on this panel affirmed where was very specific that  overall accessible space so when we argued that it needed to me to point this court found that there wasn't sufficient notice but this time it says i want a yes because not waiting not waiting to see what happened just to be say if i had made changes to what i do would it do in my complaints based on the district court decision i didn't see the point of waiting was in the original complaint i thought that the amended complaint and of the added a claim for an injunction directing the defendant to quote make their facilities fully accessible  independently usable by individuals with disabilities to the extent required by the that was in the st complaint as well the only thing that was added to the amended complaint was an additional requests for nominal damages there was literally one change one line at the end of the ad down i'm asking for nominal damages what you just cited was in the original complaint as well i don't think that it was a sentence right above your name right well i'm sorry that the court awarded nominal damages pursue that that's yes that's the only just said the measurements really provided a measurement of that was exceeded the one dollar to ten dollars that is required and that was holiday clearly understood what was being said because their own expert a measured there and acknowledged that that measurement if they had been able to reproduce it would be non compliant why couldn't they reproduce i don't know we weren't allowed to watch their  so it's not the same person it's not the person that was disbarred somebody else same last name related what related yes rather yes  holidays attorney was able to be present for the mr handsome are taking of measurements we were not present when they took their so we have no way to know why he was unable to reproduce it but the point is for summary judgment that measurement is sufficient to create a it please the court my name is tamar and i represent holiday station stores as well as when dell terminals the basic issue on appeal is whether he'll shine provided holiday with proper notice  called out is being excluded from inaccessible route so an allegation of a complaint about an accessible route cannot possibly provide notice of something that is excluded from that guideline definition and i'll ask you to help me understand it as well because then i if they're excluded why then we have a whole section now on how to deal with the ramps in the players so i guess i'm i'm still my i mean certainly there are guidelines with respect to what the slope should be for the flared sides my point is their entire argument as to how holiday supposedly had notice  player and not only is a current player not part of an accessible route and that's i'm sorry to interrupt but that's the part i don't understand so you're saying that the curb ramp flares are irrelevant in whether  accessible if you look at the way the guidelines read i would say yes they are excluding it from what you know is going to be considered with an inaccessible route but they can be anything none of so that they should be anything and if you want to make an issue of the current any other component of the accessible route that you that holiday in the process of trying to a to remedy this and make an accessible route created another problem you know good did something that made it not accessible in some other fashion another slope or another angle well that would be included in excessive aware that the only thing we're really looking here would not be give you notice of is of anything you can't read this allegation in isolation from the rest of the complaint which is what i think ill shine would require this court to do when holliday got this complaint or the amended complaint it very clearly set out the three issues that he encountered at the store and the three issues that he was asking holliday to address that was that there was an access file on an incline in violation of five o two four there was a curb ramp that projected into a parking space in violation three five point one and then there was a sidewalk near the exit that contained obstructions blocking access over to another ramp in the parking spaces in violation of two thousand and six point two point one it's that la guidelines my point is not necessarily that there were deemed to be compliance with the curb ramp flayer my argument is again if mr hill shine when he is on notice of that potentially being an issue and perhaps more importantly when hill shy makes the decision that he is going to assert a claim and seek relief for the curb ramp flare she needs to provide holidays with notice that there needs to be a leader where he an appropriate method of providing notice they state throughout their brief that holiday got noticed and apart from apparently in their expert disclosure that's simply not true if you looked at that expert disclosure st their expert inspected the store in march of twenty team and he took these various measures seven weeks later on may nd he serves as expert disclosure which happened to be one day after the expert excuse me not only the expert disclosure deadline but the discovery deadline had run you can look at that entire disclosure you can read it front to back back to front and what you don't see stated anywhere is that any of those measurements were supposedly still in violation so this case i think is on point with the davis versus anthony in case from twenty thousand which has already been mentioned and which at least two of your answers have are quite familiar with the same was true in that case the complaint as it was drafted included allegations of specific issues and violations of the eighty guidelines the business in that case likewise addressed those three specific issues this court then correctly case is no different the complaints about the three specific complaints that hillshire raised holiday have been addressed those three specific issues there's no claim here that the abscess iles any longer on an incline there is no longer any issues that he'll show and raises and talks about the factual background section of the complaint those then form the basis for the specific factual allegations and you can put them next to each other and see what the allegations are that are being claimed be the  the access road is clearly in reference to the sidewalk having obstructions on it when you read it in the complaint but but there clearly what you don't see anywhere in the complaint is anything about a curb ramps layer or about four o six three all of the other allegations are very specific if i recall correctly in the davis case and i might get this backwards but the complaint referred to five hundred and two point four for example and the new claim was based on five or two two or vice versa and this court recognized those are two very different things one does not put someone else on notice of the other so here when there  that reference to an accessible route in violation of two or six two point one that cannot be a notice of a violation of four of six three i would hope that we can agree that those are two different numbers two different pro s and they they don't include the same thing i think if you look at four o two two again that that specifically excludes the current brown players and i know counsel has offered so it's an unsupported explanation for why that accessible route well i think that simply underscores holiday's position if a business should understand inaccessible route not include a curb ramp flare from a use standpoint should they not be able to have that same understanding when they're reading pleading that pleading that asserts a violation of an accessible route cannot possibly encompass or state a claim for something the curb rappler that is under the guidelines not included in that very item now i don't know it can it can i ask is quite the qur'an players they were it were those adjusted or modified during their remedial efforts or are they just exactly the same as they were at the time of the complaint it's just now that you've reconfigured routes they become an issue you know and i and i know there were there were rather extensive modifications made so i don't know specifically if they were not changed i know council indicated that she understood i can understand your answer i'm sorry there were extensive modifications made to the parking lot and i don't know specifically whether the current players were were specifically modified as part of that i heard counsel indicate that it was her understanding that the current round players were the same as they were when she st sued this case out so certainly those measurements seemingly could have been taken at the outset and included in the complaint if it was an issue again mr hill side didn't seem to believe they were an issue so it was not included in the complaint and not something that holiday was on notice of now i know that the nd issue that is raised on the appeal is the issue of equitable nominal damages i know counsel did not have an opportunity to discuss that so i don't know if the court wants to entertain any additional arguments or not i think it's a relatively straightforward argument as well the simple argument is that the cases the saver and the buyer cases that counsel has relied on to support this equitable nominal damages argument were cases that considered title one which deals with employment not title three which deals with public accommodations and the district court correctly recognized justice hill same house previously that though that that is something that matters titled one that a court is not bound by the remedy is that the legislature chose to include in its remedy provision the title run remedy provisions specifically allows the court to award any other equitable relief  court deems appropriate that language is entirely absent from title three swam of the provision and obviously the legislature could have included that in title three had it chosen to do so so this really is not an argument when you look at the about the specific facts and with respect respect to the accessible route and this goes back to what i was talking about where they had a few options for how they were going to fix successful route my client had no way to know how to which way it was going to be there were two possible excessive methods for the making of accessible route and they chose the one that went down the curb ramp we had no idea that that was what going to be what they chose to block off the bottom of that instead of simply removing the signs that were blocking the path back from the exit route to the curb ramp that my client took up to that would take up to the entrance so it's simply not something that could have been in the original complaint in a more specific manner because my c know well well in the original complaint or at the time the idea being at the time that he filed that he would have known that that happened and there's simply no way that she could have done that with respect to nominal damages an equitable rel frankly in a situation like holiday at other locations this is the rd time that mr hill chimes before the th circuit against holiday station stores they have a systematic problem with not bringing their locations into compliance with the f d a until after