On August 17, 2011, the Ninth Circuit held, in Oliver v. Ralphs Grocery Company, et al., that plaintiffs in disability access lawsuits under Title III of the Americans with Disabilities Act ("ADA") must allege in their complaint all of the architectural barriers which form the basis for the ADA claim. A plaintiff cannot rely on an expert's report created later in discovery identifying such barriers, but must specifically plead each and every barrier in the complaint so as to afford the defendant fair notice and an opportunity to respond.

Oliver marks yet another decision from the Ninth Circuit imposing more stringent pleading requirements on plaintiffs in disability access lawsuits. The Ninth Circuit held earlier this year that a plaintiff must specifically allege that he or she personally encountered a barrier at a place of public accommodation and must further allege how his or her disability was affected by at least one of the barriers. Such allegations are necessary to satisfy the requirement for standing that a plaintiff have suffered an injury-in-fact.

The Facts of Oliver

Oliver, an individual who uses a wheelchair for mobility, filed suit in December 2007 under the ADA and parallel California state laws. He alleged he encountered 18 architectural barriers which denied him full and equal access at a Food 4 Less store owned and operated by defendant Ralphs Grocery Company ("Ralphs").

In an effort to make moot Oliver's claim for injunctive relief, Ralphs immediately began renovations at the store. After a court-imposed deadline to amend the complaint lapsed, Oliver sought to allege additional architectural barriers, but the court denied his request as untimely. A year into litigation, Oliver filed with the court an expert's report which identified a number of additional architectural barriers which were not alleged in the complaint. Oliver actually conceded that his delay in disclosing the additional alleged architectural barriers was strategic. He hoped to preclude Ralphs' ability to remove the barriers prior to trial thereby mooting his injunctive relief claim.

The court ultimately granted summary judgment against Oliver on his ADA claim (and then declined to exercise supplemental jurisdiction over his state law claims). In doing so, the court refused to consider the architectural barriers identified in the expert's report, holding that Federal Rule of Civil Procedure ("FRCP") 8 requires that each architectural barrier be alleged in the complaint. FRCP 8 requires that a complaint contain a "short and plain statement of the claim showing that the pleader is entitled to relief."

The Ninth Circuit's Decision

In affirming, the Ninth Circuit explained that FRCP 8's "short and plain statement" requirement exists to provide a defendant with "fair notice" of the claim and the "grounds" upon which it rests. Because the grounds for an ADA claim are the alleged architectural barriers, they must all be specifically alleged in the complaint.

That Ralphs had access to Oliver's expert's report before the close of discovery did not change this pleading requirement. As the Ninth Circuit held, "a plaintiff must identify the barriers that constitute the grounds for a claim of discrimination under the ADA in the complaint itself; a defendant is not deemed to have fair notice of barriers identified elsewhere."

Oliver's Significance

Oliver signals that the Ninth Circuit is becoming a less receptive forum for disability access plaintiffs in so-called "drive-by" ADA litigation. While there are strategies that plaintiffs could employ to mitigate or neutralize the effect of this decision, Oliver's holding does preclude plaintiffs from, as Oliver attempted to do, strategically springing new allegations of architectural barriers on a defendant late in litigation. Accordingly, in cases with relatively few barriers, businesses may be able to remove the alleged barriers and moot the plaintiffs' claims for injunctive relief, the only relief available under federal law.