Last month, the Honorable Phyllis J. Hamilton (United States District Judge, Northern District of California) issued an interesting [partial] summary judgment order in the matter of Francie Moeller, et al. v. Taco Bell Corporation, (Case No. C 02-5849) a case pending since December, 2002.  Over the years, this case has been certified as a class action and then decertified, subjected to multiple summary judgment efforts by both sides, taken up to the Ninth Circuit and even tried in the form of a limited test case.  The operative complaint concerns four plaintiffs, five barriers and six stores; plaintiffs had sought to expand the case include eight additional barriers and three additional stores.  The import of this most recent order is how the court viewed the interplay of the Ninth Circuit’s Oliver v. Ralphs Grocery Co. (654 F. 3d 903 (9th Cir. 2011)) and Skaff v. Meridian N. Am. Beverly Hills, LLC (506 F. 3d 832 (9th Cir. 2007)) decisions in applying the pleading requirements of the Federal Rules of Civil Procedure (“FRCP”), Rule 8 to a Title III (and related state law) complaint.

In presenting its motion for partial summary judgment, the defendant argued that the plaintiffs “can seek relief only for barriers and restaurants pled in the [operative complaint].”  Essentially, the defendant asserted that any barriers not specifically pled could not support a demand for either equitable relief or money damages in the case.  The plaintiffs countered by pointing to the many avenues by which the defendant was expressly and formally put on notice of these non-pled barriers through the class certification and decertification process, deposition and written discovery, and prior summary judgment motions to the point that the operative complaint was “constructively amended” by application of FRCP, Rule 18.  Ultimately, the Court decided to apply a strict pleading requirement rather than follow the plaintiffs’ suggested fair notice path ruling, “to the extent that the [operative complaint] does not identify specific barriers encountered by specific plaintiffs at specific stores, those claims are not presently in the case.”  The Court also granted partial summary judgment in the defendant’s favor as to plaintiffs’ requests for money damages for deterred visit claims “for the simple reason that there are no deterrence claims pled in the [operative complaint].”

The plaintiffs made other interesting arguments including that the Oliver decision applied only to federal ADA claims (for injunctive relief) and not to state law claims for money damages and that the operative complaint adequately pled an entitlement to money damages for post-filing visits to the defendant’s stores by describing the violations as “ongoing.”  The Court rejected both arguments but also indicated that the latter issue could possibly be resolved through a further amended complaint (for which no motion was before the Court).