FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRENDA PICKERN, 

No. 04-17118 Plaintiff-Appellant,

D.C. No.

v. CV-03-00121-

PIER 1 IMPORTS (U.S.), INC.;  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
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. 

PICKERN v. PIER 1 IMPORTS (U.S.), INC. 8405
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request to publish the unpublished Memorandum disposition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is withdrawn and replaced with an opinion authored by Judge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 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.

I. Factual and Procedural Background

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 prop8406 PICKERN v. PIER 1 IMPORTS (U.S.), INC.
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 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,

PICKERN v. PIER 1 IMPORTS (U.S.), INC. 8407
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.

8408 PICKERN v. PIER 1 IMPORTS (U.S.), INC.
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 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.

[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, 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). 

PICKERN v. PIER 1 IMPORTS (U.S.), INC. 8409
[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 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). 

[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 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. 

1The issue of who operates the grassy strip is related to the issue of

whether the disputed property even qualifies as a place of public accommodation. The DOJ has stated that 

[f]acilities operated by government agencies or other public entities 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. 

2Relying 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. 

8410 PICKERN v. PIER 1 IMPORTS (U.S.), INC.
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

(“[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 operate 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

PICKERN v. PIER 1 IMPORTS (U.S.), INC. 8411
(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 proposition 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. 

3The 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. 

8412 PICKERN v. PIER 1 IMPORTS (U.S.), INC.
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 discovery sanction, including the exclusion of an expert’s testimony

for failure to comply with a scheduling order, for abuse of discretion. Wong v. Regents of Univ. of Cal., 410 F.3d 1052,

1060 (9th Cir. 2005). 

[6] In response to the motion for summary judgment, Pickern raised issues of ADA violations that went beyond a failure

to provide a ramp. Pickern attempts to justify these new factual 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. Federal Rule of Civil Procedure 8(a)(2) requires that the allegations 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) (quotation omitted). In her complaint, Pickern made it clear what

her claim was when she alleged that the Store “contains architectural barriers that make it inaccessible.” She did not, however, 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. However, 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. 

PICKERN v. PIER 1 IMPORTS (U.S.), INC. 8413
[7] Although the new allegations were not part of the original 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 filing 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 allegations Pickern was including in the suit. In addition, because

the expert’s report was not filed and served until after the discovery 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 allegations. 

Accordingly, the judgment of the district court is

AFFIRMED.

5The 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. 

8414 PICKERN v. PIER 1 IMPORTS (U.S.), INC.