UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
June 25, 2009
ROGER STEVEY, PLAINTIFF,
7-ELEVEN, INC., A TEXAS CORPORATION, FORMERLY KNOWN AS THE SOUTHLAND CORPORATION, SALINDER KAUR KANG, SATVINDER SINGH KANG, DBA 7-ELEVEN, AND DOES ONE THROUGH FIFTY, INCLUSIVE, DEFENDANTS.
MEMORANDUM AND ORDER RE: MOTION AND CROSS-MOTION FOR SUMMARY JUDGMENT AND PLAINTIFF'S MOTION TO EXCLUDE EXPERT WITNESS AND STRIKE DECLARATIONS
After unsuccessfully attempting to access the restroom at a 7-Eleven convenience store in Redding, California, plaintiff Roger Stevey initiated this action to enforce the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101-12213, and corresponding state laws. Presently before the court are plaintiff's motion and defendants 7-Eleven, Inc., Salinder Kaur Kang, and Satvinder Singh Kang's cross-motion for summary judgment and plaintiff's motion to exclude defendants' expert witness and strike particular declarations that defendants submitted.
I. Factual and Procedural Background
At a lake in 1997, plaintiff overshot his landing when performing a forward flip on a rope swing and suffered severe physical injuries that resulted in paralysis. (Singleton Decl. Ex. A ("Stevey Dep.") 7:5-23.) Since that time, plaintiff has been a quadriplegic and required the assistance of a wheelchair. (Id.) On January 16, 2008, plaintiff spent the day at Whiskeytown Lake with his wife and son and, on his way home that evening, stopped at the 7-Eleven convenience store owned and operated by defendants and located at 1860 Eureka Way in Redding, California. (Id. at 5:7-15, 6:3-7, 10:11-17; Compl. ¶ 5.) The 7-Eleven is about 17.2 miles from plaintiff's home in Anderson, California (Grabowski Decl. Ex. A), and is "one of the stores" plaintiff stops at when driving to or from Whiskeytown Lake. (Stevey Dep. 6:2-5.) Prior to his visit in January 2008, plaintiff's family had stopped at the 7-Eleven on one prior occasion, but plaintiff remained in his van while a member of his family went in the store to purchase beer and chips. (Id. at. 11:4-7, 15:24-25, 16:1-6.)
Upon arriving at the 7-Eleven on the evening of January 16, 2008, plaintiff successfully maneuvered through the aisles in the store to select some donuts and "junk food." (Id. at 19-7-16.) After paying for his items, plaintiff asked the cashier for the location of the restroom. (Id. at 20:12-22.) Plaintiff then proceeded in the direction the cashier indicated and, after entering a hallway and passing a door that appeared to give access to a storage room, he found the bathroom door. (Id. at 22:1-6.) Plaintiff was able to maneuver about a quarter of the way into the single occupant restroom, but was prevented from completely entering it or reaching the toilet because of "boxes and toilet paper, metal cabinets, mops [and] every other thing" that was stored in the bathroom. (Id. at 22:1-6, 23:20-24, 24:17-21.) Plaintiff told the cashier that he could not use the bathroom because of the "stuff... crammed up in" it, but the cashier apparently did not say or do "much of anything." (Id. at 23:25-24:7, 25.) Plaintiff indicates that he felt his "blood pressure rising[ ] and throbbing in his neck," and he proceeded to exit the store and relieve himself on the ground behind the 7-Eleven. (Id. at 25:10-11, 30:19-24.)
Plaintiff has not returned to the 7-Eleven since the visit giving rise to this suit, and he does not currently have plans to go back to the store. (Id. at 33:18-34:2.) At his deposition, he testified that he "[m]ight go [to the 7-Eleven] in the summertime" because he "stop[s] at whatever is on the way[ to Whiskeytown Lake,] especially when [he is] in a hurry to go get in the water when it's a hundred degrees." (Id. at 33:21-34:2.)
After his inability to access the restroom at the 7-Eleven, plaintiff wrote a letter expressing his concern and mailed it to 7-Eleven on three occasions, but did not receive a response. (Id. at 40:4-9, 48:19-25.) On August 25, 2008, plaintiff initiated this action against defendants, seeking injunctive relief under the ADA and injunctive relief and damages pursuant to California Health and Safety Code section 19955, California's Disabled Person's Act, Cal. Civ. Code §§ 54 et seq., and California's Unruh Civil Rights Act, Cal. Civ. Code §§ 51 et seq.
On April 1, 2009, plaintiff moved for summary judgment and, on May 12, 2009, defendants opposed plaintiff's motion and filed a cross-motion for summary judgment. In their respective motions for summary judgment, the parties dispute (1) whether plaintiff has Article III standing; (2) whether plaintiff's claims have been rendered moot by defendants' recent alterations to the 7-Eleven; (3) whether the 7-Eleven is subject to the "readily achievable" standard governing existing facilities or the "maximum extent feasible" standard governing new or altered facilities, see generally Long v. Coast Resorts, Inc., 267 F.3d 918, 923 (9th Cir. 2001); and (4) whether the alterations defendants have recently made to the 7-Eleven comply with the applicable federal and state standards. In response to evidence defendants submitted, plaintiff also filed a motion to exclude defendants' expert witness and strike the declarations of Neal Casper and Olan Smith.*fn1
Summary judgment is proper "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law."
Fed. R. Civ. P. 56(c). A material fact is one that could affect the outcome of the suit, and a genuine issue is one that could permit a reasonable jury to enter a verdict in the non-moving party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The party moving for summary judgment bears the initial burden of establishing the absence of a genuine issue of material fact and can satisfy this burden by presenting evidence that negates an essential element of the non-moving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Alternatively, the moving party can demonstrate that the non-moving party cannot produce evidence to support an essential element upon which it will bear the burden of proof at trial.
Once the moving party meets its initial burden, the non-moving party "may not rely merely on allegations or denials in its own pleading," but must go beyond the pleadings and, "by affidavits or as otherwise provided in [Rule 56,] set out specific facts showing a genuine issue for trial." Fed. R. Civ. P. 56(e); Celotex Corp., 477 U.S. at 324; Valandingham v. Bojorquez, 866 F.2d 1135, 1137 (9th Cir. 1989). In its inquiry, the court must view any inferences drawn from the underlying facts in the light most favorable to the nonmoving party, but may not engage in credibility determinations or weigh the evidence. Anderson, 477 U.S. at 255; Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). When, as in this case, parties submit cross-motions for summary judgment, the court must "evaluate each motion separately, giving the nonmoving party in each instance the benefit of all reasonable inferences." ACLU of Nev. v. City of Las Vegas, 333 F.3d 1092, 1097 (9th Cir. 2003), cert. denied, 540 U.S. 1110 (2004); accord Fair Hous. Council v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir. 2001).
A. Article III Standing
"Congress enacted the ADA in 1990 to remedy widespread discrimination against disabled individuals." PGA Tour, Inc. v. Martin, 532 U.S. 661, 674 (2001). "To effectuate its sweeping purpose, the ADA forbids discrimination against disabled individuals in major areas of public life," including public accommodations. Id. at 675. Under Title III of the ADA, a plaintiff who has been 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" may enforce the ADA through a private suit for an injunction and attorney's fees. 42 U.S.C. § 12182(a); see also Wander v. Kaus, 304 F.3d 856, 858 (9th Cir. 2002) ("Damages are not recoverable under Title III of the ADA--only injunctive relief is available for violations of Title III." (citing 42 U.S.C. § 12188(a)(1))).
Article III's limitation of federal court jurisdiction to "cases" or "controversies" requires that a plaintiff have standing to pursue the claims alleged. Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-60 (1992). "The burden of establishing Article III standing remains at all times with the party invoking federal jurisdiction." Scott v. Pasadena Unified Sch. Dist., 306 F.3d 646, 655 (9th Cir. 2002) (citing Lujan, 504 U.S. at 561)). To satisfy "the irreducible constitutional minimum of standing," a plaintiff must establish three elements:
(1) the plaintiff "suffered an injury in fact--an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical"; (2) the existence of a "causal connection between the injury and the conduct complained of"; and (3) that it is "likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Lujan, 504 U.S. at 560-61 (internal quotation marks and citations omitted). "The Supreme Court has instructed [courts] to take a broad view of constitutional standing in civil rights cases, especially where, as under the ADA, private enforcement suits 'are the primary method of obtaining compliance with the Act.'" Doran v. 7-Eleven, Inc., 524 F.3d 1034, 1039-40 (9th Cir. 2008) (quoting Trafficante v. Metro. Life Ins. Co., 409 U.S. 205, 209 (1972)).
When a plaintiff seeks injunctive relief under the ADA, an injury is "actual or imminent" only if the plaintiff shows a "real and immediate" threat of future injury because of the likelihood that the plaintiff will return to the defendant's public accommodation. D'Lil v. Best W. Encina Lodge & Suites, 538 F.3d 1031, 1036-37 (9th Cir. 2008); see City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983). Because the ADA does not require a plaintiff to engage in the "futile gesture" of continuing to visit a public accommodation with discriminatory conditions, an ADA plaintiff suffers an "actual injury" if the plaintiff "is currently deterred from patronizing a public accommodation due to a defendant's failure to comply with the ADA." Pickern v. Holiday Quality Foods, Inc., 293 F.3d 1133, 1136-38 (9th Cir. 2002).
For example, the Ninth Circuit has "found actual or imminent injury sufficient to establish standing where a plaintiff demonstrates an intent to return to the geographic area where the accommodation is located and a desire to visit the accommodation if it were made accessible." D'Lil, 538 F.3d at 1036-37 (citing Pickern, 293 F.3d at 1138); see also Pickern, 293 F.3d at 1138 ("[A] plaintiff who is threatened with harm in the future because of existing or imminently threatened non-compliance with the ADA suffers 'imminent injury.'"). In addition to considering the definitiveness of a plaintiff's desire to return to the public accommodation at issue, courts in this circuit have also examined (1) "the proximity of the place of public accommodation to plaintiff's residence," (2) "plaintiff's past patronage of defendant's business," and (3) "plaintiff's frequency of travel near the business in question." Jones v. Sears Roebuck & Co., No. 05-535, 2006 WL 3437905, at *2 (E.D. Cal. Nov. 29, 2006) (J., England).*fn2
In many ADA cases, a plaintiff is able to establish an actual or imminent injury by identifying specific plans to return to the defendant's public accommodation. In this case, however, plaintiff answered "no" when asked, "Do you have any plans to go back to [the 7-Eleven]?" (Stevey Dep. 33:21-23.) Plaintiff contends, however, that he effectively changed his answer to this question with an errata sheet on February 18, 2009. The errata sheet, which plaintiff submitted to the court only after defendants filed their opposition to his motion for summary judgment and their cross-motion for summary judgment, purports to replace plaintiff's "no" response to defense counsel's question about his future plans with the answer, "Yes, reason we would use that store for convenience." (Singleton Decl. Ex. D.)
Pursuant to Rule 30(e)(1), a deponent may make "changes in form or substance" to a deposition by signing "a statement listing the changes and the reasons for making them." To make changes pursuant to this rule, the party or deponent must request review of the deposition "before the deposition is completed." See Fed. R. Civ. P. 30(e)(1) ("On request by the deponent or a party before the deposition is completed, the deponent must be allowed 30 days after being notified by the officer that the transcript or recording is available in which (A) to review the transcript or recording; and (B) if there are changes in form or substance, to sign a statement listing the changes and the reasons for making them.") (emphasis added). As the plain language of the rule provides, "requesting review is an 'absolute prerequisite' for correcting a deposition under FRCP 30(e)." Hambleton Bros. Lumber Co. v. Balkin Enters., Inc., 397 F.3d 1217, 1226 (9th Cir. 2005) (quoting Rios v. Bigler, 67 F.3d 1543, 1552 (10th Cir. 1995)); see also id. ("FRCP 30(e)  requires the deponent or the interested party to request review of the deposition in order to make corrections.").
To memorialize whether a party or deponent requested review before completion of the deposition, subsection (e)(2) of Rule 30 requires the deposition officer to "note in the certificate prescribed by Rule 30(f)(1) whether a review was requested." Fed. R. Civ. P. 30(e)(2). See generally Evans v. County of San Diego, No. 06-877, 2009 WL 306609, at *2 (S.D. Cal. Feb. 4, 2009) (discussing the 1993 amendments to Rule 30(e), which provided for review only if requested before completion of the deposition). In this case, the certification affixed to plaintiff's deposition indicates that review was not requested before completion of plaintiff's deposition, and plaintiff has not submitted evidence to the contrary. (Stevey Dep. 86:16-17.)
Courts have consistently adhered to the procedural limitations established in Rule 30(e) and have excluded purported changes to deposition transcripts when a party or deponent failed to request review before completion of a deposition. See McBride v. Rivers, 170 Fed. App'x 648, 660-61 (11th Cir. 2006) ("[Plaintiff's] deposition, however, does not reflect that, prior to the completion of the deposition, he requested to review it.... Thus, the court did not abuse its discretion in failing to rule on [plaintiff's] motion to exclude his deposition testimony, or in relying on this testimony in granting summary judgment."); Pacheco v. N.Y. Presbyterian Hosp., 593 F. Supp. 2d 599, 605 n.1 (S.D.N.Y. 2009) ("The failure of a party to request a copy of his own deposition transcript precludes his right to make changes to his transcript."); Agrizap, Inc. v. Woodstream Corp., 232 F.R.D. 491, 493 (E.D. Pa. 2006) ("Although courts are split over whether to allow substantive changes to a deposition, there is no debate that the procedural requirements of Rule 30(e) must be adhered to. 'Under the plain language of Rule 30(e) therefore, the deponent or party must request review of the deposition before its completion.'"); Blackthorne v. Posner, 883 F. Supp. 1443, 1454 (D. Or. 1995) (refusing to receive plaintiff's errata sheet as part of his deposition testimony because none of the deposition certificates indicated that plaintiff requested review before the depositions concluded); Gamez-Morales v. Pac. Nw. Renal Servs., L.L.C., No. 05-546, 2006 WL 2850476, at *5 (D. Or. Sept. 29, 2006) (refusing to adopt plaintiff's changes to her deposition when she requested review before leaving the location where the deposition was conducted but after the deposition had ended and opposing counsel had departed); Winston v. Marriott Int'l, Inc., No. 03-6321, 2006 WL 1229111, at *6 & n.2 (E.D.N.Y. May 8, 2006) ("Numerous courts have rejected changes to depositions when the procedural requirements of Rule 30(e) were not met."); accord McCoy v. Spidle, No. 07-198, 2009 WL 1287872, at *10 (E.D. Cal. May 6, 2009) (Bury, J.).
As is often the case with procedural requirements, extraordinary circumstances in a particular case may merit departure from strict compliance with Rule 30(e). See, e.g., Hambleton Bros. Lumber Co., 397 F.3d at 1224 ("Missing [Rule 30(e)(1)'s] thirty day deadline by a mere day or two might not alone justify excluding the corrections in every case."); Gardias v. San Jose State Univ., No. 04-4086, 2007 WL 1655586, at *3 (N.D. Cal. June 7, 2007) (exempting a pro se plaintiff from the review requirement after the plaintiff claimed he was hyperventilating during his deposition and filed a motion to invalidate his deposition less than thirty days after his deposition). In this case, however, plaintiff has not identified--and the record does not reveal--any circumstances excusing plaintiff's failure to comply with Rule 30(e)(1).
To the contrary, the change plaintiff seeks to make with his errata sheet is precisely the type of change the Ninth Circuit has more recently excluded from Rule 30(e). See Hambleton Bros. Lumber Co., 397 F.3d at 1225-26. In Hambleton, the Ninth Circuit aligned with the Seventh and Tenth Circuits' conclusion that "Rule 30(e) is to be used for corrective, and not contradictory, changes." Id. at 1226. Analogizing to its "sham" affidavit line of cases, the Ninth Circuit explained that even though "the language of FRCP 30(e) permits corrections 'in form or substance,' this permission does not properly include changes offered solely to create a material factual dispute in a tactical attempt to evade an unfavorable summary judgment." Id. at 1225.*fn3
Although the court need not determine whether plaintiff's change would be precluded under Hambleton if he had in fact requested review, plaintiff's attempt to replace his deposition testimony with a completely conflicting answer less than two months before moving for summary judgment and only in response to defendants' opposition and cross-motion for summary judgment presents far from the type of extraordinary circumstances that might excuse compliance with Rule 30(e). Plaintiff's failure to request review of his deposition before its conclusion thus precludes him from altering his deposition testimony, and the court will therefore disregard the errata sheet he submitted.*fn4 Accordingly, the evidence before the court is that plaintiff did not have plans to return to the 7-Eleven at the time he filed his Complaint. See Wilbur v. Locke, 423 F.3d 1101, 1107 (9th Cir. 2005) (standing is determined as of the date of the filing of the complaint).
Nonetheless, plaintiff's lack of plans to return to the 7-Eleven does not necessarily prevent him from establishing Article III standing. Courts have recognized that, given the nature of certain public accommodations, it would be disingenuous to require a plaintiff to identify specific plans to return: "Visiting a fast food restaurant, as opposed to a hotel or professional office, is not the sort of event that requires advance planning or the need for a reservation.... Therefore,... [requiring] specification as to a date and time of returning to this public accommodation is impossible...." Parr v. L & L Drive-Inn Rest., 96 F. Supp. 2d 1065, 1079 (D. Haw. 2000); accord Jones, 2006 WL 3437905, at *4. Similar to a fast food restaurant, individuals rarely make concrete "plans" to visit a convenience store, and it would be artificial for courts to demand as much under Article III.
Taking all inferences in favor of plaintiff, it is therefore possible that plaintiff thought defense counsel was asking whether he had concrete plans to return to the 7-Eleven on a specific date in the future. This inference is supported by the fact that, immediately after he answered "no"--and without additional questioning by counsel--plaintiff speculated about when he "might" return to the 7-Eleven: "Might go there in the summertime, you know, got a carload of people, going to stop for some drinks or something, you know, you stop at whatever is on the way especially when you're in a hurry to go get in the water when it's a hundred degrees." (Stevey Dep. 33:23-34:2.) Plaintiff's lack of specific plans is therefore insufficient in itself to deprive him of Article III standing.
Reasonable inferences drawn from this testimony and other relevant evidence give rise to disputed factual issues sufficient for plaintiff to withstand summary judgment. First, it is undisputed that the 7-Eleven is approximately 17.2 miles from plaintiff's residence in Anderson, California. (Grabowski Decl. Ex. A.) Compared to other cases in which the Ninth Circuit has found standing, the proximity of the 7-Eleven to plaintiff's home in this case is extremely close. See D'Lil, 538 F.3d at 1034 (finding standing where public accommodation was in Santa Barbara, California, and plaintiff's home was in Sacramento, California); Doran, 524 F.3d at 1038 (finding standing where pubic accommodation was approximately 550 miles from plaintiff's home); Pickern, 293 F.3d at 1135 (finding standing where pubic accommodation was approximately 70 miles from plaintiff's home). Second, plaintiff testified that the 7-Eleven is "one of the stores on the way" to and from Whiskeytown Lake and that he uses the store based on its convenient location on such trips. (Stevey Dep. 6:2-5; 33:25-34:2.) Third, plaintiff testified that he intends to return to Whiskeytown Lake this summer.*fn5 (See id. at 6:3-5, 14:22-25, 33:23-34:2.)
Given the close proximity of the 7-Eleven to plaintiff's home, that he always stops on his way to and from Whiskeytown Lake, that the 7-Eleven is one of the stores he stops at, and that he intends to return to Whiskeytown Lake, it is reasonable to infer that plaintiff is likely to return to the 7-Eleven in the future. Accordingly, the court must deny defendants' cross-motion for summary judgment with respect to plaintiff's standing under Article III.
Although plaintiff's testimony is sufficient to withstand summary judgment, plaintiff fails to carry his burden of establishing the absence of a genuine issue of material fact on that issue. When inferences from the same facts are taken in favor of defendants, it is also reasonable to infer that it is unlikely plaintiff will return to the 7-Eleven. For example, if plaintiff always stops on his trips to and from Whiskeytown Lake (id. at 11:2-3), but has been to the 7-Eleven on only two prior occasions, it is reasonable to infer that he rarely goes to Whiskeytown Lake or rarely chooses to stop at the 7-Eleven when he does. See, e.g., Jones, 2006 WL 3437905, at *1, *3 (finding ADA plaintiff lacked standing based, in part, on the fact that she had been to the Sears at issue twice in seventeen years and occasionally shopped at other Sears locations); see also Molski v. Mandarin Touch Rest., 385 F. Supp. 2d 1042, 1045 (C.D. Cal. 2005) ("Where a plaintiff has visited a restaurant only once, the lack of a 'history of past patronage seems to negate the possibility of future injury at [that] particular location.'" (quoting Parr, 96 F. Supp. 2d at 1079)) (alteration in original). Accordingly, because plaintiff has failed to establish the absence of a genuine issue of material fact, the court must also deny plaintiff's motion for summary judgment with respect to his standing under Article III.
As the leading Ninth Circuit cases on ADA standing illustrate, Article III does not place an onerous burden on ADA plaintiffs. Although plaintiff failed to carry his burden of establishing standing as a matter of law, the "'broad view of constitutional standing'" applicable to ADA claims, Doran, 524 F.3d at 1039-40, allows him to withstand summary judgment with the minimal evidence before the court. Indeed, the lesson to be learned from Doran, Pickern, and D'Lil is that it would take a rare set of facts before the standing requirements under Article III could deprive an ADA plaintiff of his day in court.*fn6
B. Mootness and Plaintiff's Motion to Exclude Evidence
A case is rendered moot and jurisdiction over the matter thereby abates when "'the issues presented are no longer "live" or the parties lack a legally cognizable interest in the outcome.'" Los Angeles County v. Davis, 440 U.S. 625, 631 (1979) (quoting Powell v. McCormack, 395 U.S. 486, 496 (1969)). While voluntary cessation of allegedly illegal conduct generally does not render a case moot, "a case may become moot if (1) it can be said with assurance that there is no reasonable expectation that the alleged violation will recur, and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation." Lindquist v. Idaho State Bd. of Corr., 776 F.2d 851, 854 (9th Cir. 1985) (internal citations, quotation marks, and alteration omitted). In arguing that its conduct has rendered plaintiff's claim moot, a defendant has the "heavy burden" of showing that the "likelihood of further violations is sufficiently remote to make injunctive relief unnecessary." United States v. Concentrated Phosphate Export Ass'n, 393 U.S. 199, 203 (1968).
Because a private ADA plaintiff is limited to seeking injunctive relief and attorney's fees, Wander v. Kaus, 304 F.3d 856, 858 (9th Cir. 2002) (citing 42 U.S.C. § 12188(a)(1)), a plaintiff's ADA claim is moot if the defendant makes the precise alterations or accommodations that the plaintiff sought to require with an injunction. See, e.g., Tandy v. City of Wichita, 380 F.3d 1277, 1291 (10th Cir. 2004); Bleakly v. Sierra Cinemas, Inc., No. 07-052, 2008 WL 109337, at *1 (E.D. Cal. Jan. 8, 2008) (Shubb, J.); Grove v. De La Cruz, 407 F. Supp. 2d 1126, 1130-31 (S.D. Cal. 2005); Parr v. L & L Drive-Inn Rest., 96 F. Supp. 2d 1065, 1087 (D. Haw. 2000); Indep. Living Res. v. Or. Arena Corp., 982 F. Supp. 698, 771 (D. Or. 1997).
To establish that plaintiff's ADA claims are moot, defendants have submitted a rebuttal report by their expert, Neal Casper, that itemizes the specific violations plaintiff identifies and indicates that 7-Eleven has made the necessary alterations to bring each violation into compliance with the ADA. Plaintiff, however, moves to exclude Casper's rebuttal report and supporting declaration pursuant to Federal Rule of Civil Procedure 37(c)(1) because defendants failed to disclose his report by the deadline established in the court's Status (Pretrial Scheduling) Order. Plaintiff similarly moves to exclude*fn7 the declaration of Olan Smith, which also addresses the recent alterations made to the 7-Eleven, because defendants did not disclose Smith as a potential witness pursuant to Rule 26(a)(1)(A)(i). If the court does not grant his motion to exclude the aforementioned evidence, plaintiff alternatively requests time to conduct a second inspection of the 7-Eleven, as he did not receive Casper's declaration and rebuttal report or Smith's declaration until after discovery had closed.
"Federal Rule of Civil Procedure 26(a)(2)(B) requires the parties to disclose the identity of each expert witness 'accompanied by a written report prepared and signed by the witness.'" Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001). Rule 26(e)(2) also imposes a duty on parties to supplement expert disclosures at the time the parties make their pretrial disclosures. While subsection (a)(2)(C) of Rule 26 provides default deadlines, it also expressly provides for a court order to supplant those deadlines. Here, the court's Status (Pretrial Scheduling) Order issued on January 22, 2009, provided, "The parties shall disclose any experts and produce reports in accordance with Federal Rule of Civil Procedure 26(a)(2) by no later than March 26, 2009," and "with regard to expert testimony intended solely for rebuttal, those experts shall be disclosed and reports produced in accordance with Federal Rule of Civil Procedure 26(a)(2) on or before April 16, 2009." (Docket No. 9.) The Status (Pretrial Scheduling) Order also provided that all discovery must be completed by May 4, 2009, all dispositive motions must be filed by June 22, 2009, the pretrial conference would be held on August 24, 2009, and the trial would begin on October 27, 2009. (Id.)
Plaintiff timely disclosed his expert and expert report on March 13, 2009. (Singleton Decl. ¶ 9, Ex. G.) On April 16, 2009--the deadline to disclose any rebuttal experts and their reports--defendants disclosed that they had "retained and intend to rely on the expert testimony of" Casper. (Id. Ex. E.) In that disclosure, defendants provided the contact information for Casper, his resume, and explained that he "is expected to testify regarding" defendants' "compliance with federal and state disability access laws," "whether any of the alleged barriers Plaintiff encountered interfered with his ability to access goods and services," "whether any of the alleged barriers would have deterred Plaintiff from accessing the location in question," "whether the 'readily achievable' standard applies for barrier removal," and "whether removal of any of the alleged barrier[s] may be readily achievable." (Id.) Defendants did not, however, disclose Casper's report to plaintiff's until they filed it with their opposition to plaintiff's motion for summary judgment and their cross-motion for summary judgment on May 12, 2009. Defendants' April 16, 2009 disclosures also failed to state that Casper would testify about defendants' recent alterations to the 7-Eleven.
With respect to the declaration of Smith, Rule 26(a)(1)(A)(i) requires parties to disclose "the name and, if known, the address and telephone number of each individual likely to have discoverable information--along with the subjects of that information--that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment." Rule 26(e)(1) also requires a party to "supplement or correct its disclosure or response[ ] in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing." In this case, defendants neither disclosed the existence of Smith in their initial disclosures nor supplemented those disclosures to include him. (Singleton Decl. Ex. F.)
The Federal Rules of Civil Procedure and efficient case management require courts to "set schedules and establish deadlines to foster the efficient treatment and resolution of cases." Wong v. Regents of Univ. of Cal., 410 F.3d 1052, 1060 (9th Cir. 2005); see Fed. R. Civ. P. 16(f). "Those efforts will be successful only if the deadlines are taken seriously by the parties, and the best way to encourage that is to enforce the deadlines." Wong, 410 F.3d at 1060. Rules 16(f) and 37(c)(1) therefore provide courts with the means to enforce scheduling deadlines. Id. at 1060, 1062. Rule 16(f) provides that, "[o]n motion or on its own, the court may issue any just orders, including those authorized by Rule 37(b)(2)(A)(ii)-(vii), if a party or its attorney:... (C) fails to obey a scheduling or other pretrial order." Rule 37(c)(1) deals more directly with expert and witness disclosures and "gives teeth" to Rule 26(a) and (e). Yeti by Molly, Ltd., 259 F.3d at 1106.
Specifically, Rule 37(c)(1) provides: If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless. Pursuant to this rule, defendants may not use Casper's declaration or rebuttal report, Smith's declaration, or the information in those documents unless they show that their failures to comply with Rule 26 were "substantially justified" or are "harmless." See Yeti by Molly, Ltd., 259 F.3d at 1106-07 (identifying the two express exceptions and providing that the burden is on the party facing sanctions to establish one of the two exceptions).
Defendants appear to argue that their failure to disclose Casper's rebuttal report was "substantially justified" because "it became apparent to Defendants that it would be prudent to retain a rebuttal expert to challenge the findings of Plaintiff's expert" only "[a]fter plaintiff filed his motion for summary adjudication." (Defs.' Opp'n to Pl.'s Mot. to Strike 4:17-19.) Plaintiff's expert report, however, was available to defendants on March 13, 2009, and defendants should have considered the potential relevance of the evidence without waiting for plaintiff to file a motion for summary judgment. Moreover, defendants apparent dissatisfaction with the deadlines set by the court is insufficient to justify ignoring the court's scheduling order, especially when defendants could have disclosed a preliminary report by Casper or moved for an extension of time. See Yeti by Molly, Ltd., 259 F.3d at 1106. With respect to Smith's declaration, defendants explained that Smith is the successor to a 7-Eleven employee listed in their initial disclosures, but do not identify any reasons substantially justifying their failure to supplement that disclosure to include Smith.
Defendants' argument that plaintiff's ADA claims are now moot given their recent alterations to the 7-Eleven illustrates the prejudice plaintiff might suffer if the court considers Casper's declaration and rebuttal report and Smith's declaration at this time. First, when identifying the subject areas about which Casper was expected to testify, defendants did not mention that he would testify about recent alterations defendants made to allegedly bring the store into compliance. It is therefore doubtful that plaintiff was aware that the conditions at the 7-Eleven were any different from when plaintiff's expert inspected the property. Second, defendants disclosed Casper's rebuttal report--which appears to have identified the recent alterations for the first time--only after discovery had closed. Smith's declaration, although less detailed, similarly offers evidence about these alterations. If the discovery deadline is upheld and defendants' evidence considered, plaintiff could thus be prevented from inspecting the property and rebutting Casper and Smith's representations about the recent alterations.
Nonetheless, as the parties' pretrial conference and trial date are set for August 24, 2009, and October 27, 2009, respectively, the prejudice plaintiff could suffer by the court's consideration of Casper's declaration and rebuttal report and Smith's declaration can be prevented. Indeed, Rule 56(f) contemplates a remedy for such circumstances:
If a party opposing the motion shows by affidavit that, for specified reasons, it cannot present facts essential to justify its opposition, the court may: (1) deny the motion; (2) order a continuance to enable affidavits to be obtained, depositions to be taken, or other discovery to be undertaken; or (3) issue any other just order.
The court will therefore re-open discovery to allow plaintiff to depose Casper and allow his own expert to perform an inspection of the property.*fn8 Plaintiff may then file any supplemental evidence and supporting brief on or before July 20, 2009. Defendants may submit any reply to plaintiff's brief on or before July 27, 2009. The court will keep the remaining issues raised in the pending motion and cross-motion for summary judgment under submission and issue an order after the aforementioned briefing schedule and without the need for additional oral argument.
Although the court concludes that the harsh sanction of excluding Casper's declaration and rebuttal report and Smith's declaration is not required in this case, cf. Yeti by Molly, Ltd., 259 F.3d at 1105-07 (upholding exclusion of an expert witness when the report was disclosed "almost two years after the close of discovery, more than one year after [the expert's] report was last supplemented, and just 28 days prior to trial"), defendants' failure to comply with or seek extensions of the clear deadlines should not be rewarded. As the Ninth Circuit has recognized, "[p]arties must understand that they will pay a price for failure to comply strictly with scheduling and other orders, and that failure to do so may properly support severe sanctions and exclusions of evidence." Wong, 410 F.3d at 1060. Rule 37(c)(1) also provides for sanctions separate from exclusion of evidence:
In addition to or instead of this sanction, the court, on motion and after giving an opportunity to be heard: (A) may order payment of the reasonable expenses, including attorney's fees, caused by the failure; (B) may inform the jury of the party's failure; and (C) may impose other appropriate sanctions, including any of the orders listed in Rule 37(b)(2)(A)(i)-(vi).*fn9
Defendants' failure to timely disclose Casper's expert report has undoubtedly increased plaintiff's attorney's fees and costs, including the costs associated with plaintiff's pending motion to exclude Casper's declaration and rebuttal report and Smith's declaration. Upon a proper motion itemizing the requested amount, the court will therefore grant plaintiff the reasonable expenses, including attorney's fees, that defendants' failures to comply with Rule 26(a) have caused.
IT IS THEREFORE ORDERED that plaintiff's motion and defendants' cross-motion for summary judgment with respect to plaintiff's standing under Article III be, and the same hereby are, DENIED; plaintiff's motion to exclude defendants' expert witness and strike defendants' declarations be, and the same hereby is, DENIED upon the conditions set forth in this Order; and the remaining issues raised in plaintiff's motion and defendants' cross-motion for summary judgment will be taken under submission.