NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 14 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAMEY PERRY, No. 21-55513
Plaintiff-Appellant, D.C. No.
2:20-cv-02996-GW-AGR
v.
RICHARD J. GOTTLIEB, in individual MEMORANDUM*
capacity; in representative capacity as trustee
of the Richard J. Gottlieb Separate Property
Trust dated July 30, 2018,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
George H. Wu, District Judge, Presiding
Submitted March 10, 2022**
Pasadena, California
Before: WARDLAW and HURWITZ, Circuit Judges, and MOLLOY,*** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Donald W. Molloy, United States District Judge for
the District of Montana, sitting by designation.
Jamey Perry appeals from a final order of dismissal, following the district
court’s denial of her motion to amend her complaint in this disability action against
Richard Gottlieb, a clothing store owner. Perry sought injunctive relief under Title
III of the ADA against Gottlieb because of accessibility barriers at his store.
Gottlieb removed the accessibility barriers, and the court dismissed her ADA claim
as moot. Perry then requested leave to amend her complaint to seek nominal
damages under Title III of the ADA, and the district court denied her request as
futile. “We review the denial of leave to amend for an abuse of discretion, but we
review the futility of amendment de novo.” Cohen v. ConAgra Brands, Inc., 16
F.4th 1283, 1287 (9th Cir. 2021). We have jurisdiction under 28 U.S.C. § 1291,
and we affirm.
1. The district court correctly found that plaintiffs may not seek nominal
damages under Title III of the ADA. Arroyo v. Rosas, 19 F.4th 1202, 1205–06
(9th Cir. 2021); see also 42 U.S.C. §§ 12188(a)(1), 2000a-3(a). Because Perry
sought to amend her complaint to request this legally unavailable form of relief,
the district court properly deemed her request futile.
2. The district court also correctly concluded that our precedent holding
that nominal damages are unavailable under Title III of the ADA is not clearly
irreconcilable with the Supreme Court’s decision in Uzuegbunam v. Preczewski,
141 S. Ct. 792 (2021). See Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003)
2
(en banc). In Uzuegbunam, the Supreme Court addressed only standing, holding
“that a request for nominal damages satisfies the redressability element of standing
where a plaintiff’s claim is based on a completed violation of a legal right.” 141 S.
Ct. at 801–02. But the Supreme Court did not address the availability of nominal
damages under Title III of the ADA. Nor did it hold that nominal damages are
now available as an inherent remedy for all legal injuries.
AFFIRMED.
3