FILED
NOT FOR PUBLICATION JUL 29 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DIMAS O’CAMPO, No. 12-16483
Plaintiff - Appellant, D.C. No. 2:10-cv-01100-KJM-
CMK
v.
BED BATH & BEYOND OF MEMORANDUM*
CALIFORNIA, LLC,
Defendant - Appellee.
Appeal from the United States District Court
for the Eastern District of California
Kimberly J. Mueller, District Judge, Presiding
Argued and Submitted November 18, 2014
San Francisco, California
Before: BERZON and RAWLINSON, Circuit Judges and LYNN,** District Judge.
Appellant Dimas O’Campo (“O’Campo”) appeals the district court’s denial
of his Motion for Leave to File First Amended Complaint and the district court’s
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Barbara M. G. Lynn, District Judge for the U.S. District
Court for the Northern District of Texas, sitting by designation.
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dismissal, with prejudice, of his Original Complaint.
On May 5, 2010, O’Campo sued Appellee Bed Bath & Beyond of
California, LLC (“BBB”) under the Americans with Disabilities Act of 1990, 42
U.S.C. § 12101 et. seq., the Disabled Persons Act, Cal. Civil Code § 54 et. seq., the
Unruh Civil Rights Act, Cal. Civil Code § 51 et. seq., and California Health and
Safety Code § 19959, alleging that five designated barriers prevented him from
enjoying full and equal access to BBB’s Chico store. O’Campo’s Original
Complaint alleged that “O’Campo has severe brain damage, which affects his
ability to walk, talk, see, and stand” and stated that O’Campo “requires the use of a
cane when traveling in public.” The Complaint did not state that O’Campo uses a
wheelchair.
On September 14, 2010, the district court issued a Scheduling Order. It
provided, among other things, that there would be “[n]o further joinder of parties
or amendments to pleadings . . . without leave of court, good cause having been
shown.”
On February 24, 2012, at a hearing on motions for summary judgment, the
district court expressed doubt that it had subject matter jurisdiction, noting that the
five alleged barriers would present problems only for a person in a wheelchair.
The district court gave O’Campo permission to seek leave to amend the
Complaint and Scheduling Order. On March 9, 2012, O’Campo moved to amend
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his Complaint, but he made no effort to show good cause for the late effort to
amend. The district court denied O’Campo’s motion, explaining that O’Campo
had “wholly failed to show . . . good cause,” and stating that modifying the
schedule at that stage of the litigation would be “unduly prejudicial to the defense
and [would] create undue delay.” The district court then dismissed O’Campo’s
suit, with prejudice, for lack of subject matter jurisdiction because the pending
Complaint did not show a relationship between the alleged barriers and the nature
of his disability as pleaded by O’Campo. O’Campo timely appealed.
The district court’s denial of O’Campo’s motion to amend is reviewed for an
abuse of discretion. Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607
(9th Cir. 1992). If, as here, a party seeks to amend after a deadline provided in a
Scheduling Order, the party seeking leave must request the court to amend the
Scheduling Order, and must demonstrate good cause to justify that request. Fed.
R. Civ. P. 16(b)(4). AmerisourceBergen Corp. v. Dialysist W., Inc., 465 F.3d 946,
952 (9th Cir. 2006). Here, O’Campo made absolutely no effort to show good
cause. It was therefore not an abuse of discretion for the district court to deny
O’Campo’s motion to amend.
The district court’s sua sponte dismissal of O’Campo’s Complaint for lack
of standing is reviewed de novo. Skaff v. Meridien N. Am. Beverly Hills, LLC, 506
F.3d 832, 837 (9th Cir. 2007). To demonstrate Article III standing, a plaintiff must
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plead (1) injury-in-fact, (2) causation, and (3) redressability. See Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). In this case, the only dispute
is whether O’Campo sufficiently pleaded the injury-in-fact prong of standing,
which turns on the “nature and source” of O’Campo’s claim under the ADA.
Chapman v. Pier 1 Imports (U.S) Inc., 631 F.3d 939, 947 (9th Cir. 2011) (en banc)
(quoting Warth v. Seldin, 422 U.S. 490, 500 (1975)). An ADA plaintiff has
suffered an injury-in-fact when he encounters “a barrier that deprives him of full
and equal enjoyment of the facility due to his particular disability.” Id. at 944
(emphasis added). The plaintiff must therefore show the “necessar[y] link[] to the
nature of his disability” to properly plead standing. Id. at 947 n.4.
The district court properly concluded that the barriers O’Campo alleged
would not interfere with the full and equal access of a mobility-impaired person
who requires the use of a cane, rather than a wheelchair. Using as an example the
fourth alleged barrier, incomplete insulation of the pipes under the lavatory1, this
condition would not impact a person who was standing up, because the legs of a
standing person would not be underneath the lavatory while that person washed his
hands. Even though the Court is to draw reasonable inferences in favor of
O’Campo, the Court cannot reasonably infer that incomplete insulation covering
the pipes beneath the lavatory would interfere with O’Campo’s full and equal
1
In context, this is a sink.
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access to BBB’s facilities when his alleged impairment required that he use a cane.
This same analysis applies to all five alleged barriers. The Court may not imagine
additional facts about O’Campo’s disability that O’Campo did not allege.
Accordingly, the district court properly concluded that O’Campo failed to
sufficiently allege standing for his ADA claim. Thus, the district court properly
dismissed the case.
AFFIRMED.
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