NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 13 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT SEGALMAN, No. 12-17601
Plaintiff - Appellant, D.C. No. 2:11-cv-01800-MCE-
CKD
v.
SOUTHWEST AIRLINES CO., MEMORANDUM*
Defendant - Appellee.
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, Jr., Chief District Judge, Presiding
Argued and Submitted November 21, 2014
San Francisco California
Before: RAWLINSON and FRIEDLAND, Circuit Judges and MARSHALL,**
Senior District Judge.
Plaintiff Robert Segalman appeals the district court’s dismissal of his claims
under the Americans with Disabilities Act (“ADA”) and California statutes
prohibiting disability discrimination, as well as a state-law negligence claim, all
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Consuelo B. Marshall, Senior District Judge for the
U.S. District Court for the Central District of California, sitting by designation.
1
stemming from Southwest Airlines’ alleged improper handling of his electronic
wheelchair. We review de novo the district court’s grant of a motion to dismiss
under Rule 12(b)(6). Narayanan v. British Airways, 747 F.3d 1125, 1127 (9th Cir.
2014).
Following the district court’s judgment in this case, we decided Gilstrap v.
United Air Lines, 709 F.3d 995 (9th Cir. 2013), which addressed several of the
legal issues presented here. In light of Gilstrap, we affirm in part, vacate in part,
and remand to the district court for further proceedings.
I. ADA Claim.
As Plaintiff acknowledges in his reply brief, his ADA claim is foreclosed by
Gilstrap, in which we held that airport terminals are not among the “place of public
accommodation” governed by the ADA. 709 F.3d at 1011-12. Accordingly, we
affirm the dismissal of Plaintiff’s ADA claim.
II. State-Law Negligence and Statutory Claims.
The district court concluded that Plaintiff’s claims under California’s Unruh
Act and Disabled Persons Act, as well as his negligence claim, were preempted by
federal regulations implementing the Air Carrier Access Act (“ACAA”). We
subsequently considered the preemptive effect of ACAA regulations in Gilstrap
and held that whenever “the particular area of aviation commerce and safety
implicated by the lawsuit is governed by pervasive federal regulations . . . any
2
applicable state standards of care are preempted.” 709 F.3d at 1006 (internal
quotation marks and alteration omitted). Federal regulations “do[] not, however,
preempt any state remedies that may be available when airlines violate those
standards.” Id. at 1010.
Plaintiff alleges that Southwest employees (i) caused his wheelchair to arrive
at his destination without power, (ii) failed to follow his written directions on how
to place the wheelchair in cargo, (iii) broke the wheelchair’s arm and neck rests,
and (iv) severed the wheelchair’s seatbelt. ACAA regulations are pervasive in
prescribing how air carriers must stow and care for wheelchairs, and a handful of
regulations directly address the specific areas of air carrier service at issue in
Plaintiff’s allegations. See, e.g., 14 C.F.R. § 382.127(f) (carriers must not drain
wheelchair batteries); id. § 382.129(a) (carriers must follow passengers’ written
instructions concerning the disassembly and reassembly of their wheelchairs); id.
§ 382.129(b) (carriers must return wheelchairs in the condition in which they
received them). These pervasive federal regulations preempt state-law standards of
care (or standards of discrimination) for Plaintiff’s state-law negligence and
statutory claims.1
1
We decline to reach Plaintiff’s argument, raised for the first time on appeal, that
ACAA regulations do not apply to intrastate conduct. See In re Mortg. Elec.
Registration Sys., Inc., 754 F.3d 772, 780 (9th Cir. 2014) (“Generally, arguments
not raised in the district court will not be considered for the first time on appeal.”).
3
The next question is whether California law provides remedies under the
Unruh Act, Disabled Persons Act, and common law of negligence in situations in
which, due to preemption, federal regulations provide the standard of care (or
standard of discrimination). See Gilstrap, 709 F.3d at 1007. As in Gilstrap, we
leave this issue for the district court to determine in the first instance.2
We vacate the dismissal of Plaintiff’s state-law negligence and statutory
claims, and remand for further proceedings.3
AFFIRMED in part, VACATED in part, and REMANDED. Each party shall
bear its own costs.
2
To the extent Plaintiff’s state-law claims mirror his now-dismissed claim under
the ADA, the district court may also consider whether, and to what extent, the
state-law claims are preempted by the ADA.
3
Because Plaintiff’s operative complaint at the time of dismissal did not allege a
cause of action under the ACAA, we decline to reach Plaintiff’s argument that
there is an implied right of action under the ACAA. See Gilstrap, 709 F.3d at 1002
(noting circuit split regarding an implied right of action under the ACAA but
declining to reach the question because the plaintiff “d[id] not allege a cause of
action under the ACAA”).
4