thank your honor attorney scott hubbard i'm representing the plaintiff in the victory unless the court has any questions i'd like to reserve the rest of my time that i'd like to address and it's always been my experience that three circuit judges know the law far far better than i ever will and it's the facts that is the primary concern of the court so unless there is a factual answer well we may not have any questions for pier one and they may decide that we can rest on the reduced because they're well done and we understand the facts and the law your choice a d happy to answer any questions that the court does have about the briefs in this case and i think there are basically just two issues in the case that the issue of whether or not pier one could possibly have had an obligation to build a ramp over which he referred to as the grassy or the grassy berm in this case which the district court said it did not because it was not within the control of pier one and the grassy strip it's not part of this facility as defined under the a t f a so the district court felt that that issue was perfectly clear if the court has no questions on that issue i'd like to t the an issue concerning something called the preliminary report and pier one was not really given an opportunity to to discuss this plumeri report first i would like to point out that supplemented it in the report that the district court was late and was struck from the record player report first of all was not mentioned during the summary judgment at all so the district court did not get an opportunity to to deal with this particular argument the parliamentary report is not part of the summary judgment record in fact it is only part of the  deals with the sanctions order it is not part of the record in terms of a verified piece of evidence in fact the plenary report that is referred to was never sworn to the author is unknown it is undated and inconsistent with what the appellant have said in their reply brief and in their letter to this court the issues beyond what was in the preliminary report what was the purpose of the preliminary report the plumbing or report was given to the pier one attorney use as part of settlement discussions and  was never put into the record other than at the sanctions phase before the district court and you know the parties did meet several times to try and work out their disagreements and the plumbing report was in that manner so it serves no other purpose that that one can discern from the record here compel the site inspection and you know at that point the the expert report would have already been light but the if you're one offered to agree to allow the  inspection anyway there was a disagreement about how it would occur that eventually went to the magistrate aside inspection was granted and did occur with some protections for pier one in march of two thousand and four  about a month later is when the car declaration was finally filed none of these issues were presented as any kind of assault tory position to the district court to district court never considered these issues because they weren't argued to the district court and in fact the record is pretty clear that there are one in no way interfered with the timely you know exercise of the right to take a  inspection because the the plaintiff had withdrawn the initial request that was made for the inspection although there's nothing in the record that would indicate that but i would point out that in white vs divine judge durham around specifically states that he the issue before the court is not an issue of notice pleading under rule eight but in fact is an issue of article three standing so to the extent that the court goes on to make certain rulings in that case it has to do with that court opinion concerning standing and not the notice issues that are relevant in this case i will also note that both in the reply brief and in the february seventh letter to this court the  pallant raises this issue of standing as if it is the same as the issue of notice pleading the judge below decided this case on the notice pleading issue standing is relevant if it is relevant at all only to the extent that any of these claims these new claims that were set forth by the card declaration are actually allowed into consideration because some of them may in fact raise standing reply brief and is just a red herring standing if it is applicable at all is helpful to pier one it is not an argument to standing cases are not an argument against the district court's ruling on the notice issues the court states that does state that there is nothing inherently wrong with boilerplate complaints if the counsel has conducted an appropriate inquiry under rule levon this is complaint itself was in adequate and the court below did state that the complaint itself with inadequate but went on to find that even if the complaint was somehow could are admitted to be false the attorney for the palin stated that these were intended to be illustrative only and hypothetical only so when you combine boilerplate nature with the hypothetical admittedly include the claims or fair notice to appear one concerning the claims that are actually being raised in this case in duran however the plaintiffs in that case did the court specifically reserved for later just asian the issue of whether or not the failure of the plaintiffs to file a motion to him and and to indeed amend their complaint to conform with the affidavit issues that was discovered during discovery would have been you know would be something that interferes with their ability to make these claims that issue was not decided in the wilson decision that was cited to this court and i would point out for the record that the wilton decision decided it presented to this court is a january two thousand and six decision that was subsequently a february two thousand and six decision from the same court that i think further clarifies the january decision and contains a footnote at one that makes it clear that the court is not deciding this issue of whether or not a motion to amend whatever be required as you may know in this case the case before the court there was never a motion to amend the complaint there was never a motion and for permission to follow a late expert report so you know the to the extent that the plaintiff is claiming an excuse to any of it failings there was never an attempt to correct those in the court below never had an opportunity to consider whether there were mitigating factors that should have allowed an amended complaint or a later expert date  unless the court has any other questions i think that's all the response we have to the reply specifically and that you worry letter thank you like i'm going to have to speak a little longer than i anticipated i'm going to jump around a bit forgive me first with respect to the question of whether or not what did the complaint violations is the specific barriers and the specific eighty eight violations aren't with satish you what's at issue is the defendant's failure to make the facility readily accessible to and usable by the plaintiff's right to full and equal enjoyment of a facility eighty two deals with the defendant's failure to remove architectural barriers from a facility so we included our complaint that the defendant failed her move architectural barriers from the facility whether or not he failed to remove this very or that barrier that very over there is immaterial what we are concentrating on you see defendant's failure specifics only about the failure of the a b a i mean that you know you're talking kind of in circles here because the the real problem is whether having had a summary judgment motion you can then come back and  effect you know want to reply brief there after the fact and raised issues that were part of the original summary judgment and you're saying you can i believe we raised them in cross motions for summary judgment in i have to forgive me i'm trying to remember what was what was raised in which we did a motion for summary judgment and i think we also did a cross motion for summary judgment focusing on that issue i thought the question was was the car declaration the only evidence that we have is that it's my question and i don't know of any other evidence from anyone else and you're saying there is that when you stay within the complaint forgive me for asking are we talking about the initial complaint the motion the cross motion the opening brief and the m we had included that in all of it except except admittedly the i'm on page seventy two with the further excerpts of record mr picker in on page seventy three describes the route of travel that she takes to get to the store she talk about you know when you're not answering the question the question is what are the additional claims other then that they didn't put a crossing so that there was a ramp are there any other claims that you're making and what are they and where do we find them i will have to have access to the entire record you tell us where it is we can find  if you go to page seventy four of the further excerpts of records she talks about parking being accessible she talks about the sidewalk in front of the store not the sidewalk on east twentieth street the sidewalk in front of the it being too steep they talk she talks about the slope in the parking being uneven it causes her van to deploy her at an odd angle she talks about  not having twelve inches of laps clear space to open a door latch tight clear space if pointing to the door back there that would be the door if you're pulling the door open you have to get with it you have to have at least twelve  inches to the side to the right hand side of the door knob so a person in a wheelchair can get close enough to open it she talks about inaccessibility in the restroom with respect to fox is blocking the clear would be inappropriate i think it's inappropriate for summary judgment to be appropriate for a lot of this we've got on your mark i think on both motions no i'm talking about your motion yes my motion you probably well court's decision are passing in the night because the district court characterizes your motion as plaintiff's motion for summary cation as to the issue of defen liability for not constructing the access ramp the court also ruled if i think it to that  there is the passage in this water i believe that or could have been the order granting fees that many of the barriers were he comes to the conclusion that many of the i believe that it was a difference of opinion for lack of a better term i mean people for the court looked at this the evidence we presented and believes that we weren't objecting to the fact that the barriers remained i think that we were he claimed that they were factually unsupported i thought they were he claimed that they were they had been mooted i didn't think they were and we had offered evidence suggesting otherwise which quite candidly the defendant's main contention regarding barriers being removed was michael givens their defense expert but that defense expert was disclose question of the defense expert is that on appeal you know because the court as you said the court never ruled on the defense which it's not something that we're going to consider but the court did rule on the striking of our expert and one of the issues we did raise with respect to the striking of our expert was the fact that our expert disclosures were identical sunni the defendants in the very first minutes that there was no evidence of control no evidence of the grassy strip was a part of the facility asked for evidence of control we included photos of seven other defendants in the area seven other business owners in the area a third of them asked the city for permission to add a ramp the city granted it thirty of them didn't ask for on the ramp here and right now we're on the accessible route yes what's unfair about your you're the a pow and and the way passed through i think it's unfair i let you proceed and now you're convincing me that i was probably wrong to let you sit it out the first round be that as it may here we are so please proceed i mean you're jumping all over the place i can see where the district court couldn't figure out what's you know what's out because we don't have really a coherent statement of what's on appeal and what the issues are so are you now on the ramp multiple areas of statute interpretation of regulation if i'm jumping around a why it's not intentional it's just the way i took my notes and i'm trying to limit my comments to everything that the defense brought up in their in frenzy if you want time you had eight minutes left on the clock